Mk '^^«. ii^*t|*l3 ^^;'m^ WM Cornell University Library JX 1706.A3 1882 Extraterritoriality; a letter from the Se 3 1924 007 435 864 .1...0..1 XI Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007435864 EXTRATERRITORIALITY. A LKTTER FROM THE SECRETARY OF STATE TO THE CHAIRMAN OF THE SENATE COMMITTEE ON FOREIGN RELATIONS CONCBKNING THE JUDICIAL EXEEOISE OP EXTEATERRITOEIAL RIGHTS CONFERRED UPPN THE UNITED STATES. APRIL 29, 1883. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1882. ■fr^?tT&~fe^l % 47th Congkbss, > SENATE. 1st Session. i \ No. 89. LETTEE FROM THE SECRETAEY OE STATE. ADDRESSED TO HON. WM. WINDOM, CHAIRMAN COMMITTEE ON FOREIGN RELATIONS, AND OTHER PAPERS, Relative to the exercise of judicial extraterritorial rights conferred upon the United States. May 4, 1882. — Referred to the Committee on Foreign Relations and ordered to be printed, to accompany bill S. 1828. Department op State, Washington, April 29, 1882. Hon. William Windom, Chairman Committee on Foreign Relations, United States Senate : Sir : In reply to your note of the 28tli March last, I have the honor to lay before you some suggestions respecting amendments to existing laws regulating the exercise of judicial extraterritorial rights conferred upon the United States, together with a draft for legislation which it is supposed may carry out such suggestions. For convenience, I divide what 1 have to say into separate subjects, with distinct headings. 1.— What is extraterritoriality? I can best show what extraterritoriality is by quoting the language of the British act (6 & 7 Victoria, Chap. XCIV; see Appendix IV) con- ferring power to exercise it. The act says — That it i.9 and shall be lawful for Her Majesty to hold, exercise, and enjoy any power or jnrisdiction which Her Majesty now hath or may at any time hereafter have within . any country or place out of Her Majesty's dominions, in the same and as ample a manner as if Her Majesty had accquired such power or jurisdiction by the cession or conquest of territory. The national sovereignty and law is transferred bodily into a foreign soil, and made applicable to citizens or subjects of its own nationality dwelling there. It regulates their rights as between themselves, and as between themselves and natives, absolutely. As between them and resi- dent foreigners of other nationalities, it would regulate their rights ab- solutely but for the fact that the different settlements of the Christian nationalities generally live together, and make mutual concessions to each other, sometimes by custom, and sometimes by written agreements. 2 judicial exteaterritoeial eights. 2. — Its necessity. As part of tlie public law of Europe, it took its rise in the conflict be- tween Islamism and the principles of the Eoman law. After the Greek Empire fell, its commerce with the West remained. The Christian traders of foreign nationalities claimed and obtained the right to be exempt ,from the rules of the Koran, and to be governed by their own laws de- rived from Rome. How far removed the Koran was and Is from our own principles for the administration of justice may be gathered from the following extracts from a recent dispatch from our minister at Con- stantinople : The rule of the "sacred law " making Christiaus incompetent as witnesses against Turks is one of tlie marvels of Mussulman jurisprudence. Hearing that such a rnle actually existed I had Mr. look up the volume containing the law upon the sub- ject, and he has it now in possession. I take the liberty of quoting from it points of plainest application. * * « Thus, in the category of the inadmissible (as witnesses), I tind the following: Players of backgammon, though chess-players are admissible under certain conditions ; such as that they do not spend all their time at the game, that they do not play for money, and that they fail not in their times of prayer on account of the game. So, wine-drinkers and pork-eaters, because of the prohibition in the Koran ; so of those who eat bread in the streets ; so of those who utter blasphemies against Mahomet and his disciples; so of those who make water standing, because in doing so the urine may spatter upon their legs and they be made unclean, so that they cannot go into a mosque for prayers ; so, Jews may testify against Christians, and Christians against Jews, and foreigners against non-Mussulmans ; but under this permission is couched the prohibition forbidding any of them testifying against a Mussulman. So, the testimony of a woman counts for but half; that is to say, two women are required to make one witness. You will see the full force of these canons when I remark that if objection be made to a witness the objection shall be justified. Suppose a Christian called to testify against a Turk in a Mussulman court, and his competency put in question. If he does not play backgammon ; if he does not drink wine or eat pork ; if he does not eat bread in the streets ; if he nave not uttered blas- phemy against tlie prophet or his disciples ; still how shall he swear that he never makes water standing? Or suppose the case of an outrage upon a Christian woman, and no witness but herself. The rights thus obtained from Turkey (originally for the French, from which fact all Europeans were termed Franks) have been extended by subsequent " capitulations " and treaties, and devolve upon citizens of the United States by a treaty which confers it in words as we under- stand it. But as the English text is disputed by the Turks it comes to us also by the favored-nation clause ; so that in any event, as the matter is viewed by the Department of State, there is no reasonable question of our right of extraterritorial jurisdiction in the Ottoman Dominions over Americans charged with the commission of crimes. The same rights have been obtained in Persia, China, Japan, Siam, and other nations, and for like reasons. The civilization of the Christ- ian countries of Europe rests upon the equitable principles of Roman law, which through all changes have permeated and influenced their in- stitutions. In Turkey these principles were uprooted, and in China, and Japan, &c., they never took root at all. In a. memorandum inclosed by Mr. George F. Seward in his dispatch No. 505, dated I^J'ovember 18, 1879 (see Foreign Relations, 1880, page 155), it is said : There can be no doubt that the state of the Chinese j udicial establishment, as it affects foreigners, is unsatisfactory. No code of procedure, worthy to be called such, exists. The magistrates, secretaries, and constables are often corrupt. Judgments are secured only after a great deal of exertion, and persistent efforts have to be made to secure their execution. And again, page 159 : Scattered through the various reports are allegations that offenders who are sent to the district magistrate for trial generally appear upon the streets in a day or two, and JUDICIAL EXTRATEEEITOBIAL RiaHTS. 3 that those who are sentenced by the mixed court magistrate to the bamhoo, the cangue or confinement, frequently evade the punishment to which they have been sentenced. In civil matters the payment of judgments is generally sought to be eu- fori'.ed by imprisonment, but judgment debtors are not held if they fall ill, and whether as the result of the very bad sanitary condition of the prison, or of " mild poisons taken for the purpose," they often fall ill and escape further difficulty. I venture to think that the weight of testimony establishes that it is absolutely necessary that the rights which we enjoy in this respect should be preserved, and carefully and vigorously enforced, 3. — Legislation to enforce it. Turkey has "capitulations" with France, Great Britaiu, Holland, Austria, Eussia, Sweden, Denmark, Germany, Spain, Italy (Sardinia), Belgium, Portugal, Greece, Brazil, and the United States; and China, Japan, Persia, Siam, &c., have treaties with many or all of these pow- ers. I have not the means in the Department for stating to the com- mittee the character of all the legislation enacted to exercise the rights conferred by these capitulations and treaties. If I had, it would be manifestly undesirable to weary the committee by stating it. It will be sufficient to compare the legislation of Prance, Great Britain, and the United States with each other. An examination of this compara- tive legislation will probably be sufficient to satisfy the committee how far the American in these foreign colonies fails to receive from his gov- ernment the protection which is accorded to other foreigners. In estimating this it should also be borne in mind that these colonists, of different nationalities and living under different laws, generally form but one community, grouped together in one settlement, or concession, and frequently combining together, as will be seen hereafter, for muni- cipal organization and government, but living apart so far as concerns their persons and their property. 4. — The French system. The civil jurisdiction of the French consuls in the Turkish Empire and the Barbary States is still exercised in conformity with the provis- ions of the royal edict of June, 1778. I inclose a translation of so much of this edict as relates to civil jurisdiction. (See Appendix I.) The fundamental principle in this edict is that French laws, then ex- istiTig or that might thereafter be enacted, were to be in force in and to govern the consular courts. This principle has been followed in the American statutes, in the British statutes and orders in council, and in the Italian laws. In Great Britain, Italy, and France it operates to extend their whole system of civil and general municipal law over the consulate and the colonies under their protection. In the case of the United States the act only extends to Federal legislation. This is, however, supplemented by extending also the provisions of equity and admiralty. Even with these provisions inserted, the American colonies enjoy the protection of a much narrower system of laws than the colo- nies of France and Great Britain. The forms of pleading and of procedure-are to be adapted to those used in France, with a proviso that only the most simple and summary ways are to be adopted. The Sardinian law goes further than the French in providing that no nullity for mere matter of form shall be admitted, unless it leaves absolute uncertainty as to persons or subject of the suit. 4 JUDICIAL EXTEATEEEITORIAL EIGHTS. The subjects which are justiciable are all subjects of litigation, what- ever may be their nature, arising between French merchants, sailors, and others within the limits of the consulate. Thus it was held in the appellate court at Aix, the question of competence being raised, that the management of the estate of a minor was within the jurisdiction of the tribunal; and the jurisdiction has been sustained by that court, when questioned, not only on personal matters affecting the execution of contracts, but on contentions respecting hiring of real estate, the settle- ment and division of estates, or of partnership, adoption of children, validity of marriages, easement on real estate, actions for specific per- formance of agreements to sell real estate, and the validity of seizures. These examples, selected from adjudicated and reported cases, show how wide is the jurisdiction conferred by Prance on her consuls. The persons justiciable in these courts must be French citizens or per- sons under French protection, residing within the limits of the consu- late. It is not enough that the person is there temporarily. But this applies only to the defendants. A person of a different nationality may sue in a French court, as plaintiff, if the defendant is justiciable. This seems to have been many times decided by the courts at Aix. The court consists of the consul and two assistants, called assessors. These assessors, originally only counsellors {amicicurice), have now a vote in rendering the judgment, but the judgment itself is rendered by the consul. The edict makes provision for a '^greffier,^^ a ^^Imissier," a '^notaire,^ and the other usual officers of a French tribunal. It also provides geur erally for the conduct of trials and the entry of judgment and'the mode of enforcing it. These judgments may be enforced anywhere within French jurisdiction in the same manner as judgments rendered by other tribunals. It has further been held by the French courts that the same provision of the edict empowers a consul to enforce, within his terri- torial jurisdiction, judgments of all French courts. All these powers extend to arrest and imprisonment when warranted by French law. The appeal in all the French consular courts in the Mediterranean is to the court at Aix, in Provence, which takes the place of the Parliament of Aix, named in the edict of 1778. Although the edict names no period within which the appeal shall be taken, it is held by the courts that pro- ceedings in this respect must follow the rules in the code for appeals from the courts of the first instance in France. The same rule prevails as to costs. The judgment of the appellate court may be again reviewed by the Cour de Cassation, if under like circumstances an ordinary judg- ment could be reviewed by it. Vice-consuls or other inferior consular officers, in the absence of con- suls, are to act for them, with full powers. The criminal jurisdiction of French consuls is regulated by the pro- visions of the act of May 28, 1836. (See Appendix II.) In a circular from the ministry of foreign affairs of July 16, 1836, it is said: This law is not confined to filling the gap which existed in our legislation. It re- produces, with some useful modifications, all the articles of the edict of 1778 which were capahle of being continued. It determines the forms of procedure, and givea to the accused guarantees conformable to the general spirit of our legislation. It con- fers upon consuls alone the flual judgment of misdemeanors (contraventions), and upon consular tribunals the double duty of performing the functions which appertain in our courts to "Chamhres de covseil," and to sit in judgment upon every kind of crime in the first instance. It provides for an appellate tribunal in France for appeals against judgments rendered in the Levant, in correctional matters and for crimes. In fine, it indicates the punishment applicable to every kind of crimes, whether felonies or misdemeanors, the mode of review or appeal, as well as the rights and duties of consuls and the ministry. JUDICIAL EXTRATERRITORIAL RIGHTS. 5 This full of&cjial statement of the purposes and character of the law makes it unnecessary to say more on that point. The law applies to persons under French protection, as well as to Frenchmen. The offender must be tried in the consular district in which the offense was committed. Consequently it was held that an offender taken in another district must be returned for trial to the con- sul of the district in which he committed the offense. As in civil cases, so here, the consul is to be assisted by two laymen chosen by him from the " notables " who reside withiu his district. These "notables" are to be selected by the consul annually, to serve for a year. Bj' the act of July 8, 1853 (see Appendix III), it is provided that dis- putes in civil and commercial matters arising in China between French- men shall be adjudicated in consular tribunals according to the provis- ions of the edict of June, 1778. A court of appeals was established at Pondicherry to exercise the appellant jurisdiction enjoyed by the court at Aix as to the consulates in the Levant and the Barbary States. The provisions of the law of 1830 as to offenses, with some exceptions, were by the same act extended to China. The same act provided for consular jurisdiction in Muscat, the appel- late court being in the French colony on the Island of Eeiinion and the tiibnnal of St. Denis. Subsequent laws have also extended this jurisdiction to the French citizens in Persia, in Siam, in Japan, «&;c. 5. — The British system. The act of August 24, 1843, 6 & 7 Victoria, Chap. XCIV (see Ap- pendix IV), provides : 1st. That the power or jurisdiction acquired by the British sovereign out of British dominions shall be held in the same and as ample a manner as if the sovereign had acquired such power or jurisdiction by the cession or conquest of territory; 2d. That acts done in pursuance of such power in a country or place out of British domin- ions shall be deemed in all courts and elsewhere in British dominions as valid as if done according to local law in force in such country or place. The act also authorized the sending of a person charged in such country or place with crime to a British colony for trial, and made pro- vision for the taking of material evidence by deposition in such case, and for the use of the depositions on the trial. There are other provis- ions of this act which it is not necessary to notice. On the 2d October, 1843, by an order in council, it was ordered that the British ambassadors, ministers, charges d'affaires, consuls-general, consuls, and vice-consuls, resident within the Ottoman dominions, being British subjects, should continue to exercise the power and jurisdiction which they had been in the habit of exercising, until further orders. On the ioth June, 1844, this order was revoked and anew one issued, whereby it was provided that any act which, when done in British do- minions, would render the doer subject to punishment, should be con- sidered criminal to the same extent when done by British subjects in the Ottoman dominions, and power was conferred upon the British con- sular service in those dominions to hear, adjudge, and punish offenders. Light offenses, meriting a punishment of imprisonment not exceeding three months or fine not exceeding one huudfed dollars, could be heard by the consul alone. For more serious offenses he was required to sum- mon in two or four British subjects as assessors. During the same year a series of ordinances was issued by the gov- b JUDICIAL EXTRATEKEITORIAL RIGHTS. erument of the British colony of Hong-Kong as " superintendent of the trade of Her Majesty's subjects in China." One of these ordinances was " to give judicial authority to Her Britannic Majesty's consuls within the dominions of the Emperor of China." In 1847 an order in council, dated 24th April, made further provis- ions respecting proceedings against offenders charged with committing the crimes of arson, house-breaking, cutting or maiming, stabbing, or assault endangering life, within the Ottoman dominions. In 1857, great changes wei'e again made by an order in council, dated 27th August. Jurisdiction was taken away from the consul-general and conferred upon a person to be specifically commissioned and entitled " the Judge of the Supreme Consular Court of Constantinople." This court was given an original jurisdiction, and also appellate jurisdiction. As a court of original jurisdiction, it could hear and determine all crimi- nal charges except when the offense charged was a capital one. In those cases it could send the prisoner to an English settlement for trial, bind- ing British subjects to appear as witnesses, and taking written evidence from persons not British subjects. Misdemeanors could be examined and disposed of without a jury. All higher offenses were to be tried with the aid of a jury of six indifferent British subjects. In civil suits, full power was given to make rules of practice. Power was given to institute and prosecute proceedings in bankruptcy and insolvency. Ap- peals could be taken from civil judgments to the Privy Council for judg- ments to the amount of £i-,0(iOandupwiu?dST— ^So"* On November 30, 1864, all previousorders were revised and put into the form in which substantially they now remain. |See Appendix Y.] This last order in council creates a court styled "Her Britannic Majesty's Supreme Consular Court for the Dominions of the Sublime Ottoman Porte," with its chief place of sitting in Constantinople. The sole judge of this court is the consul-general for the time being, with power in his absence to depute his authority. In addition there is in each consular district a court for the district styled "Her Britannic Majesty's Consular Court at ," of which the local consul is judge. In every district a jury list is made out once a year from qualified Brit- ish subjects, and in trials where juries are had the jury is to consist of five. Provisions are made, also, for summoning assessors. Within the district of the consulate-general at Constantinople all jurisdiction is vested in the supreme court. In the consular districts primary juris- diction is vested in the consular courts, with appellate jurisdiction in the supreme court. The order in the appendix indicates the lines of these powers with precision, and also when trials are to be had by jury, and when by assessors. Keference is made to it for more particular in- formation. Paragraph 7 and paragraphs 39 to 40, inclusive, are more especially occupied with the civil jurisdiction of these courts. Particular atten- tion is invited to these provisions. It will be seen that they make the tribunals courts of law and equity, with all the jurisdiction legal, equi- table, or other, which any British consul by custom has or may exercise in Ottoman dominion ; that all are made courts of bankruptcy, courts of vice-admiralty, and courts of probate ; and that the supreme court has jurisdiction over persons of unsound mind and their estates ; that it is made a court for matrimonial causes, but without jurisdiction for granting divorces, and that all the jurisdiction is to be exercised in con- formity with the common law, the rules of equity, the statute law, and other law for the time being in force in and for England. Power is also given to make rules for the conduct of all this business. And in order JUDICIAL EXTRATERRITORIAL RIGHTS. 7 to liuow wbo are entitled to the privileges of the act and to assist in form- ing the jury lists, provision is made for the registry of British subjects residing in the Ottoman dominions. The criminal jurisdiction of these courts, defined in paragraphs, 6, 7, 8, and 9, is as broad as the criminal jurisdiction of the courts of En- gland. They also have jurisdiction over offenses against the capitula- tions, against the articles of peace, against treaties between Great Brit- ain and Turkey, and against any rules and regulations properly made for the observance thereof, or for the maintenance of order among Brit- ish subjects in the Ottoman dominions. The power of imposing pun- ishments is regulated by paragraph 62. The courts are to have regard, as far as circumstances admit,, to the punishments imposed by the law of England in like cases. The detailed provisions for proceedings, what cases may be disposed of without juries, in which case the juris- diction of the district court is iinal, when appeals may be taken, what steps are necessary in capital cases, &c., all will be found minutely stated in the order. Another order in council of the 9th of March, 1866, provided "for the better government of Her Majesty's subjects in the dominions of the Emperor of China and the Tycoon of Japan." In its main features this order is so like the last, and it is so long (filling thirty-eight pages of the British and Foreign State Papers for 1864^'5, vol. Iv., pages 136- 174) that it is not deemed necessary to send it to the committee in full. The general jurisdiction conferred upon the courts is substantially the same as that conferred upon courts in Turkey. This is to be exercised by a supreme court to be styled " Her Britannic Majesty's Supreme Court for China and Japan," and by "Provincial Courts." The supreme court consists of one judge, an assistant judge, a law secretary, and as many officers and clerks as may be necessary. It sits at Shanghai, exercising exclusive jurisdiction within the Shanghai consulate district, and ap- pellate jurisdiction over the judicial action of the provincial courts. The assistant judge and the law secretary seem to be authorized to hear and determine causes in the Shanghai district, within the original jurisdiction of the court, when specially empowered. The same court possesses extraordinary original jurisdiction throughout China and Ja- pan, concurrent with the jurisdiction exercised by provincial courts. The provincial courts are held by the consuls-general, consuls, and vice- consuls within their respective consular districts. The provisions as to jurors, assessors, modes of proceeding, registration, &c., are in the main like those in the order respecting the Ottoman dominions. Great Britain, like the United States, has rights of extraterritoriality ill many other places. The jurisdiction is provided for in each case by an order in council, and is exercised through a consul. In regard to Madagascar, for instance, the order was made on the 4th of February, 1869. (See British and Foreign State Papers, 1868-'9, vol. lix, page 1246.) The general j)rovision respecting civil jurisdiction (sec. 6) is that "all suits, disputes, differences and causes of litigation, of a civil nature, arising between British subjects within the dominions of the Queen of Madagascar, shall be heard and determined by Her Majesty's consul, who shall be the sole judge and arbiter thereof respectively; subject, nevertheless to an appeal against the decision of the consul therein to the supreme court of the Mauritius, in cases where the sum or matter at issue is of the amount or value of 200 dollars or upwards"; with a further provision (sec. 7) as to assessors when the amount in dispute exceeds five hundred dollars. The extent of the jurisdiction of crimes is regulated by the order 8 JUDICIAL EXTEATERRITOEIAL EIGHTS. (sec. 22) that, except oifenses against tlie treaty with Madagascar and the regulations for enforcing it, " no act done by a British subject within the dominions of the, said Queen shall by Her Majesty's consul be deemed and taken to be a crime or misdemeanor, or offense rendering the person committing it amenable to punishment, which, if done within any part of Her Majesty's dominions, would not by a court of justice having criminal jurisdiction in Her Majjesfcy's dominions have been deemed and taken to be a crime, a misdemeanor or offense, rendering the person committing it amenable to punishment." In China the British minister is empowered to make "regulations" having the force of law, for the peace, order, and good government of the British colonies, and for securing the observance of the stipulations of the treaties, and for maintaining friendly relations between British and Chinese subjects. (See Appendix VI.) These regulations may be made for the whole of China or for one or more of the consular districts. They may be made alone or jointly with representatives of other powers when they concern municipal government. But such regulations must be submitted to and approved by the home government. The recent order in council, last cited, also makes regulations for China and Japan with regard to prison regulations, to the registration or record of mortgages of real estate, to bills of sale with or without de- feasance or trust, to suits by and against partners, to suits by and against foreigners {i. e., citizens or subjects of foreign countries with which Great Britain is at peace), and with reference to Chinese, Japanese, or foreign tribunals. In China, Japan, and Turkey a British consul, on the arrest of a per- son charged with the commission of a crime within another consular district, may either proceed to examine, try, and punish the offender as if the crime had been committed in his own district, or may, on the requisition of the consul of the district within which the crime was com- mitted, send him in custody to that court or require him to give security for his appearance there. 6. — The American system. The first act conferring such judicial powers upon the consuls of the United States was enacted August 11, 1848, and was entitled "An act to carry into effect certain provisions in the treaties between the United States and China and the Ottoman Porte, giving certain judicial powers to ministers and consuls of the United States in those countries." (9 Statutes at Large, 276.) The jurisdiction in regard to civil matters conferred by this act in- cluded authority to execute the provisions of the treaty, whether in re- gard to persons or property, and jurisdiction over matters of contract, and over all controversies between citizens of the United States and others provided for by the treaty. The jurisdiction over criminal offenses included the power to arraign and try in the manner provided in the law all citizens of the United States charged with offenses against law, committed in the dominions of China (including Macao) and the Ottoman dominions. As to both classes, the jurisdiction was to be exercised in conformity with the laws of the United States, so far as applicable; and the com- mon law, so far as necessary to supply defects, was extended over all citizens of the United States in those countries ; and the diplomatic rep- resentatives of the United States were further authorized to supply by decrees and regulations any further defects. JUDICIAL EXTRATERRITORIAL RIGHTS. 9 The Department of State, uiiwilliug to assume an arbitrary and al- most unlimited power of legislation, has construed the power thus con- ferred upon the diplomatic representatives as remedial ; as it is said in the consular regulations (edition of 1881, paragraph 612): The authority couferred by the statute is defined to be a juiKcial authority. The minister is required to execute the power in conformity with the lawn of the United States, with authority to supply defects and deficioncies in two cases only: 1. Where those laws are not adapted to the exerc ise of the judicial authority conferred by the statute ; a. Where they are deficient in the provisions to furnish suitable remedies. In each of these contingencies the minister has authority to make regulations in order " to furnish suitable and appropriate remedies," and for no other purpose whatever. It is manifest that the act of 1848 was far below the necessities of an American community in a country like China. The act of June 22, 18G0 (see 12 Statutes at Large, page 72), undertook to remedy the defects. It extended not only the common law, but equity and admiralty, over American citizens in those countries. In other respects it improved the working of the law of 1848, as for example, in section 8, by limiting the amount of a fine for contempt; in section 9, by making a provision for rules to regulate appeals ; in section 10, by providing for a permanent list of assessors, or ass istants ; by inserting section 18, conferring author- ity to settle criminal cases not of an aggravated character; in section 21, providing for the exercise in Turkey of civil j urisdiction when warranted by usages in. its intercourse with other powers, and in section 22, by providing for the performance ot a minister's duties in his absence by a consul-general or consul. It also extended the provisions of the act to Persia, Japan, the Barbary States, and Siam, and generally to all un- civilized countries in which we may obtain extraterritorial rights; made provision for officers for the court and prisoners, and, finally, provided a mode by which marriages of Americans in those countries might be solemnized in the presence of our consular officers and attested by them. By the act of July 1, 1870 (see 16 Statutes at Large, page 183), ap- peals from final judgments of ministers in Japan or China were given in criminal cases, and in civil cases where the matter in dispute exceeded $2,500 exclusive of costs to the district court in California, and some further provisions were made as to otflcers of courts and as to pris- oners. These several provisions are substantially embodied in the Eevised Statutes, sections 4083 to 4130, inclusive. The power conferred upon diplomatic representatives to make regulations has been exercised as follows : In the case of China, by Commissioner Davis, communicated to Congress by President Fillmore September 9, 1850 (see Senate Ex- ecutive Document No. 72, first session Thirty-first Congress) ; by Charg6 d'Affaires Parker, communicated to Congress by President Fillmore March 1, 1852 (see Senate Executive Document No. 43, first session Thirty-second Congress) ; by Commissioner McLane, communicated to Congress by President Pierce February 25, 1856 (see House Execu- tive Document No. 32, first session Thirty-fourth Congress) ; by the same commissioner, communicated to Congress by President Pierce July 15, 1856 (see House Executive Document No. 125, first session Thirty-fourth Congress) ; by Commissioner Parker, communicated to Congress by President Pierce December 12, 1856 (see House Executive Document No. 11, third session Thirty-fourth Congress); by the same commissioner, communicated to Congress by President Buchanan De- cember 10, 1857 (see House Executive Document No. 9, first session Thirty-fifth Congress); by Minister Eeed, communiciat^d to Congress by President Buchanan December 27, 1858 (see House Executive Docu- 10 JUDICIAL EXTRATEEEITOKIAL EIGHTS. meut No. 11, second session Thirty-fifth Congress) ; by Charge d'Affaires Williams, communicated to Congress by President Buchanan February 6, 1860 (see Senate Executive Document N'o. 7, first session Thirty-sixth Congress); by Minister Burlingarae, communicated to Congressby Presi- dent Johnson, with his annual message, December, 1865 (see Diplomatic Correspondence 1865, vol. 2, page 413); by Charge d'Affaires Williams, communicated to Congress by President Johnson January 26, 1869 (see Senate Executive Document No. 34, third session Fortieth Con- gress). I inclose a copy of the regulations as they now exist (see Ap- pendix VII). In the case of Turkey, by Minister Morris, communicated to Congress by President Lincoln January 23, 1863. (See Appendix VIII.) In tbe case of Japan, by Minister De Long, communicated to Con- gress by President G-rant January 27, 1871. (See Appendix IX.) If the lawyers of the. committee or the Senate will look at the severa. documents I have referred to respecting regulations for China, they will see how uncertain it is what are and what are not in force. If they will compare the Turkish, the Chinese, and the Japanese regulations (all of which form part of this paper), they will become aware of the want of uni- formity or rather the great divergency in practice caused by permitting these regulations to be shaped from time to time by lawyers trained in different schools. All this may have been well enough when our inter- ests were small and the number of persons to be affected much less than now. But the time has come wheu, with our interests in these coun- tries magnified by the natural growth of our own country, aud the Amer- ican colonies there increased from those causes, and by the enormous increase in facilities of travel; we need more uniform and more complete and comprehensive laws than can be had under the present system. 7. — Municipal regulations. Before explaining the changes in existing legislation, which the kind- ness of the committee permits me to suggest, it is necessary to take note of some cases in which the general jurisdiction conferred upon our con- suls by treaty and legislation has been and is affected by common con- sent of all the treaty powers. Foremost among these are what are known as the municipal regulations. In many of the settlements the foreigners of all nationalities reside in a portion of the town set apart for them. As population increased it became necessary to lay out and pave streets, to light them, to construct sewers, to organize a police, and in general to make the municipal regu- lations which are necessary for the government of such bodies. The manner in which this has been done can be illustrated by the history of the present foreign municipality in Shanghai. After the opening of this port, the Chinese authorities set off to Great Britain a tract of about a mile square outside the walls for foreign oc- cupation. As it was by far the most desirable point for settlement, this • was soon occupied by settlers of all nationalities. At first it was main- tained that British jurisdiction must be recognized; but this was re - Nisted, and, finally, the British consul gave way. In 1854 a set of land regulations was agreed upon, which received the sanction of the consuls of Great Britain, the United States, and France. (See Senate Execu- tive Document No. 22, second session. Thirty-fifth Congress, page 159.) The settlement continued to prosper, and need was developed for further municipal powers. In 1866 new regulations were made, which were communicated to Congress by the President, with his annual message, JUDICIAL EXTRATEREITOEIAL EIGHTS. 11 in 1867. A copy of these regulations is annexed. (See Appendix X.) Particular attention is invited to the subjects regulated by the by-laws, and to the forty -first by-law conferring upon " the proper consular repre- sentative" jurisdiction to enforce them. Eegulations of a like character have been established, and are in force in other places in China and Japan. Their legality and the propriety of enforcing them upon citizens of the United States have been formally recognized by this Department. (Mr. Fish's instructions to Mr. Bing- ham, January 20, 1876, Appendix XI.) In the Samoan Islands a similar jurisdiction is reposed in the Ameri- can, German, and British consular representatives, jointly, by an agree- ment which has been recognized by the Department of State, although not formally regarded by either power as a treaty. (See Appendix XII.) 8. — Mixed oouets. The fourth article of the treaty with Turkey provides that "if litiga- tions and disputes should arise between the subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgment be pronounced unless the American dragoman be present." In practice a different course has been adopted. By an ar- rangement concluded by note between the Porte and the four ambassa- dors, mixed tribunals are held at the seat of every consulate in the empire in which each nationality may be represented where its citizens are concerned, and in them suits between foreigners or foreigners and natives are justiciable. The consuls make out lists of leading residents, or " notables," of their several nationalities, from which from time to time the selections are made. The French court of appeals at Aix has seemed disposed to regard the tribunals as having no legal basis. It is said that Great Britain, on the contrary, has recognized them in the orders in councils, but I have not been able to find the order. In Egypt a mixed tribunal of more permanent and dignified character has been established by decree of the Khedive, and with the diplomatic consent of the leading powers. The United States are represented on this tribunal by three judges, commissioned by the Khedive on the nomination of the President and psiid by the Egyptian Government. The twenty-fourth article of the treaty of 1858 with China provides that — Where there are debts due by subjects of China to citizens of the United States, the latter may seek redress in law ; and, on suitable representations being made to the local authorities, through the consul, they will cause due examination in the premises, and take proper steps to compel satisfaction. The twenty-eighth article of the same treaty provides that — * * if controversies arise 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 ecjuity by the public officers of the two nations, acting in conjunction. The practical construction given to these provisions is not the same in all parts of the empire. Thus, at Canton, it has been the custom to follow the direction of article 24 as to notice to the local authorities, and they have exercised the jurisdiction, giving the consul the right to be present. (Mr. Lincoln to Mr. Seward, Foreig* Relations for 1879, page 221.) In Chin-Kiang such cases are tried before the consul, the Chinese having a right to have a native official sit with the consul. (Mr. Scruggs to same, lb. 222.) In FoochoAv they aie tried by the con- sul and the local district magistrate. (Mr, De Lano to same, Ih. 233.) 12 ' JUDICIAL EXTRATEERITOEIAL RIGHTS. In Hankow they are tried by the consul alone. (Mr. ^hepard to same, lb. 224.) In Ningpo there is no mixed court. The nationality of the defendant determines the court, the American consul having the right to be present in the Chinese court. (Mr. Lord to same, lb. 226.) " The Chinese government has established a mixed tribunal, so called, at Shang- hai, in which suits against Chinese defendants brought by foreigners may be tried. This court is so constituted that the native magistrate decides all matters coming before him, and the foreign officer present acts only in the capacity of an assessor or assistant, for the purpose of securing a clear exposition of the facts and considerations upon which the foreign complainant relies." (Mr. George P. Seward to Mr. Eva.rts, Foreign Relations for 1880, page 150.) As this class of tribunals is outside of treaties, it is not worth while to attempt to legislate about tht^m, any farther than to give assent through the statute to the presence of an official representative of the United States. The want of uniformity is to be regretted ; but this can be cured by harmonious executive action between the ministers of the United States and the native authorities. It cannot be reached by legis- lation. 9. — The proposed amendments. This r6sum6 of the French and English legislation and of the sub- jects which require legislation leads up to the brief explanation of the accompanying bill (see Appendix XIV), to which, in closing this already too long note, I invite the attention of the committee. The title adopts in principle the British definition of the places to which the legislation is to apply as "places out of the territory and dominion of the United States," and it also describes one of the objects of the legislation to be to amend the Revised Statutes from sections'4082 to 4130, inclusive. The first section provides that the jurisdiction, so far as it is judicial, is to be exercised through courts which are to be courts of record. The second, third, fourth, fifth, and sixth sections provide for courts in China and Japan. The consuls are to hold consular courts as heretofore. In criminal matters these courts are to have the power of arresting offenders as heretofore, and summarily to try all offenders when the punishment is imprisonment not more than six (6) months, or fine not more than $'^00. With the exception of capital offenses, more aggravated offenses are to be tried in these courts with the help of a jury. In civil cases the orig- inal jurisdiction of these courts remains as at present, except that when more than $200 is involved either party may demand a jury, and that all causes in equity and admiralty are to be heard in a district court. A district judge is to be appointed for China and for Japan. China is divided into three districts and Japan constitutes one. These courts have exclusive original jurisdiction in equity and admiralty, and original jurisdiction concurrently with consular courts in civil causes in which more than f 500 is involved, and appellate jurisdiction for the consular courts in certain civil and criminal cases. The district courts, also have exclusive jurisdiction in capital oases which are to be tried with iuries and sole power to issue writs of habeas corpus. "' The two judges sitting together with the consul-general for Yokohama form the supreme court for Japan, and with the consul-general for Shanghai the supreme court for China, each with appellate lurisdiction only. Section 7 provides for proceedings in case of voluntary and invqlun- JUDICIAL EXTBATERRITOHIAL EIGHTS, 13 tary insolvency in China and Japan. These proceedings relate solely to these countries. It is not supposed that the colonies or the business in other countries call for them. Section 8 amends the Eevised Statutes so as to make them couforiu to the principles of this bill. All judicial power is taken away from the ministers and left with the consuls. The only countries in which a min- ister of the United States now has judicial functions are China, Japan, and Turkey. In China and Japan the bill proposes to replace the min- ister with regularly organized courts. In Turkey, where the capitula- tions give us only criminal jurisdiction, it is believed that the system will work better by j^roviding juries for capital and aggravated offenses, leaving the trial in all cases to the local consul. The principal change made in the present system of trials in all countries outside of China and Japan is the abolition of the system of assessors and the introduc- tion of a jury system. The bill, as pi'esented to the committee, and as the printer will be asked to print it, will show the statutes as they now are and the changes which are proposed, so that the committee may have before it the form and scope of every proposed amendment. Section 9 relates to the limitations of real and personal actions in all the courts ; section 10 to the right of aliens to sue in the courts estab- lished by the act ; section 11 abolishes imprisonment for debt, and ex- empts from seizure or execution a limited amount of household furni- ture and other properly. Section 12 confers authority on consuls to take part in making munic- ipal regulations, and to enforce them for the benefltof the municipality. Section 13 relates to mixed courts, authorizing consuls to participate in them. Section 14 authorizes consuls to issue process, and compel at- tendance of witnesses, whose evidence is needed in consular courts of other powers ; and section 15 relates to depositions to be used in the courts of the United States, consular and otherwise. Section 16 enacts a short statute of frauds with provisions validat- ing chattel mortgages. The want of these laws is represented as one of the greatest evils under which the American colonies are suffering. Section 17 relates to marriages and divorces, and the rights of married women. Divorces a vinculo are allowed only for adultery committed in the country in which the court is sitiiated. Marriages are allowed when not incestuous. Section 38 relates to wills and their probate, and to the settlement of the estates of deceased persons, estates of minors, and the succession to personal property. As the permanent American colonies in these countries have enlarged, some provisions of this sort are essential. The same may be said of section 19, which provides for successions to real estate, and of section 20, which relates to i>artnerships, general and limited. Section 21 is a jury law. It provides for a registry of persons qual- ified to be jurors and for the summoning of juries. In these small com- munities it would be inconvenient, if not impossilile, to have juries of twelve. The English system is followed, making juries of live, and re- quiring them to be unanimous. Section 22 is a code of crimes and punishments. Section 23 relates to the fees t)f clerks, marshals, interpreters, and others. . Such of these as are general and do not belong to the ofhcers are, with the fines and penalties, to remain in the clerk's hands, as a fund for payment of the judicial expenses, to be accounted for to tbe Secretary of State. Section 24 makes it the duty of tlie Secretary of State and the Atlor- 14 JUDICIAL EXTRATERRITORIAL RIGHTS. ney-General to J)repare a code of practice and regulations to carry the act into effect. When approved by the President, this is to have the force of law, but may, from time to time, be, in like manner, changed and amended. This is substantially the English system, substituting the two Cabinet oflftcers and the President for the 'Sovereign and the privy council. Section 25 guards against a construction that the act may take away some consular power's not intended to be interfered with, and section 26 provides that the main provisions of the act are not to go into effect until six months after the President's approval of the code, but that the sec- tions directing the code to be made and the sections relating to purchase of buildings for courts and prisons may take effect at once. 10 — Constitutionality of this measure. It has been suggested in some quarters that the present laws infringe upon the Constitution. I beg to trespass on the time of the committee a little more, while I notice this doctrine, which I cannot but regard as erroneous. The Constitution, by its terms, is ordained and established " for the United States of America." The places in which laws of this class are in force are out of the United States and form no part of our domain. . The Constitution and the laws of the United States, made in pursu- ance of it and treaties made under its authority, are to be the supreme law of the land ; but not of any other land, nor for American citizens living in any other land. That the fraraers of the Constitution so understood it we may gather from contemporaneous evidence. Two treaties granting extraterritorial rights were concluded nearly simultaneously with the adoption of the Constitution. The first (the treaty with Morocco of January, 1787) pro- vides that if citizens of the United States in Morocco have disputes with each other the consul shall decide between the parties. The second (the treaty with France of l^ovember 14, 1788, negotiated by Jefferson) contained a provision that all differences and suits between citizens of the United States in France should be determined by the consuls and vice-consuls, either by a reference to arbitrators or by summary judg- ment without costs. This treaty was submitted to the Senate by Presi- dent Washington on the 11th of June, 1789, and was unanimously accepted by that body on the 29th of the following July. In the sixty years which intervened prior to the passage of the act of 1848, treaties conferring extraterritorial rights were concluded with Algiers, with China, with Morocco (extending the treaty of 1787), with Muscat, with Tripoli, with Tunis, and with Turkey; but no attempt was made to carry the jury system of the United Sta,tes into any of those countries, and no law of any kind was enacted on this subject until the law of August, 1848, was passed. When this law was enacted Congress had for its guide the French system of assessors and the British laws, which had copied that system. Great Britain seemed to have arrived at the conclusion that juries were there impracticable. Congress apparently accepted that conclusion, and copied in ])rinciple the French and English systems. The statesmen ot those days, in a Senate of which jMr. Webster, Mr. Calhoun, Mr. Badger, Mr. John Davis, Mr. Jefferson Davis, Mr. Clayton, Mr. Benton, and Mr. Eeverdy Johnson were members, and a House containing men like Mr. Chai'les Ingersoll, Mr. Jos. Ingersoll, Mr. IMcJjane, Mr. Ashmun, Gen- eral Schenck, Mr. Alexander Stephens, and Mr. liobert C. AViuthrop JUDICIAL EXTRATEREITOEIAL EIGHTS. 15 passed this act unanimously, without a question as to the constitutional right to do so. In 1860 another Cougress re-enacted it, with some amend- ments and other provisions added to it, as has already been shown. In 1870 it was again the subject of consideration, when appeals were granted to the district court for California. Finally, in 1873, the pro- \'isions were again re-enacted in the Eevised Statutes. Still further, the constitutionality of these laws has been the subject of a judicial decision in the circuit court of the United States for the ninth circuit, and has been fully sustained by Mr. Justice Field in an elaborate and exhaustive opinion. Thus we find a harmony of sentiment between the early executive action contemporaneous with the forming of the Constitution, the later executive action by those who were familiar with or took part in form- ing it, the legislative action by successive Congresses for more than a generation, and the judicial action of an eminent member of the Supreme Court. This justifies us in thinking that the treaties in question, instead of extending the provisions of the Constitution over the territories of the powers with which they were negotiated, operated to take out of the jurisdiction of the local courts either the civil disputes of citizens of the United States or the criminal offenses committed by them, or both. It would work great injustice to hold that they operated to put those civil disputes beyond the reach of process or those offenses beyond the reach of punishment, until juries could be organized under authority of law. Yet no one will question that, even admitting the power of Congress to decline to confer the right of trial by jury in such cases, the spirit of our institutions calls for laws conferring those rights when it becomes practicable to grant them. The British system of laws, which we copied in 1848, has widely departed from its then model, and has been more and more adapted to the English jury system. The accompanying draft is intended to incorporate into our laws those changes and ameliora- tions which British subjects have long enjoyed. It proposes to do this by general legislation, supplemented largely by. executive regulations. This seems to be wiser than to adopt the legislation of any particular State, as suggested by some of the correspondents of the committee. The bill was drawn by Mr. Davis, the Assistant Secretary of State, Mr. O'Connor, the Examiner of Claims, furnishing the sections relating to the punishment of crimes and offenses, and to the fees of officers. 1'hat it may be found, when printed, defective in detail is more than probable. But i feel no doubt that it is substantially correct in principle; and that in the valuable papers which Mr. Davis has collected, and which I transmit herewith, the committee will find ample material to correct all errors in the accompanying draft, or for framing a new bill if they pre- fer to do so. I have the honor to be, sir, your obedient servant, FEED'K T. FEELI]SIGHUYSE]5f. [Inclosures. 1 Appendix I. — Translation of the royal French edict of June, 1778. II.— Translation of the French law of May 28, 1836. III. — Translation of the French law of July 8, 1852. IV. — Statute of Great Britain, 6 and 7 Victoria, chap. XCIV. V. — British order in council, November 30, 1864. VI. — British order in council, October 25, 1881. 16 JUDICIAL EXTRATEEEITOEIAL RIGHTS. Appendix VII. — Regulations in force in the consular courts of tlie United States in China. VIII. — Regulations in force in the consular courts of the United States in the Ottoman dominions; IX. — Regulations in force in the consular courtswf the United States in Japan. X. — Land municipal regulations at Shanghai. XI. — Mr. Fish to Mr. Bingham, January 20, 1876. XII. — Convention relating to the government of Apia. XIII. — Provisions in various treaties and conventions conferring rights of extraterritoriality upon the United States. XIV. — Draft for an act concerning the exercise of the jurisdiction con- ferred upon the United States in places out of their territory and dominion, and to amend the Revised Statutes from section 4082 to 4130, inclusive. [APPE NDIX I.] ROYAL FRENCH EDICT OF JUNE, 1778, REGULATING THE JUDICIAL FUNC- TIONS OF FRENCH CONSULS IN THE LEVANT AND THE BARBARY STATES. [Translation. ] Louis, etc. : Among the duties which our consuls perform in foreign countries, and particularly in the seaport towns of the Levant and of the Barbary States, to protect in those places the commerce of our subjects, we have turned otir attention to the administration of justice; we have recog- nized that, conformably with the 01 dinanccspasfeed on this subject, actions should be conducted before our consuls by the simplest and most sum- mary procedure, and that nevertheless the same ordinances do not ex- pressly free them (the consuls) from the formalities observed in our kingdom, which are for the most iiart impracticable under a foreign power. "Wishing to leave nothing to be desired in a matter so impor- tant to maritime commerce, we have judged it proper to establish for the jurisdiction which our consuls exercise in foreign countries, and for the civil and criminal proceedings which they conduct, rules easy to ob- serve, and in accordance with which they shall administer justice in the different consulates, in a uniform manner and with all necessary expe- dition. For these causes and others, etc. : Article 1. Our consuls shall have cognizance in the flist instance of actions^, of whatever nature they may be, arising between our subjects — merchants, seamen, and others — in their consular districts; our said consuls shall provide, each in his district, for the maintenance of a good and strict police over our said subjects, of whatever rank and con- dition they may be, both on land, in the ports, and in the different an- chorages and roadsteads where ships of commerce receive and discharge their cargoes ; we order our said consuls to administer justice faithfully ; ajid in consideration of the remoteness of the places where they are most frequently attached to the consular service, after their nomina- tion we free them from taking oath. 2. We expressly forbid and prohibit our subjects journeyiiig, either JUDICIAL EXTEATERRITORIAL RIGHTS. 17 by land or sea, or engaging in commerce in a foreign country, from summoning, for any cause whatever, our other subjects before judges or other officers of foreign powers, under penalty of 1,500 livres fine, to the ])ayment of which the oifenders may be condemned, and may be im- prisoned until payment is made, at the suit of the public prosecutors of our courts of highest resort, which have ajipellate jurisdiction of the de- cisions of the consuls before whom the said offenders should have made their demand or preferred their complaints; and in case execution is had against a French subject in virtue of judgments or ordinances ema- nating from a foreign authority, those of our subjects who shall have obtained them shall, furthermore, be also held by imprisonment to costs, damages, and interest for the benefit of the parties who shall have therein suffered in any manner whatever. 3. We order our consuls to set forth the proofs of the offenses men- tioned in the preceding articles, by records of the cases {proces ver- baux) or formal presentments, which shall be proceeded with in the presence of the offenders or of those duly summoned, and we order them to forward the sa.id records and presentments to the secretary of state having charge of the department of the navy (now of foreign affairs), who sliall pass them over to our public prosecutors, each in his district. 4. The fines which shall be imposed by reason of the said offenses shall be payable, to wit, for the seaports of the Levant and of the Bar- bary States to the ^'■chamhre de commerce^^ of Marseilles, and for other consulates to the '■^ cliamhres de commerce''^ nearest the places where the offenses shall have been committed. 5. Independently of the penalties imposed by the three preceding ar- ticles, a statement shall be made through the secretary of state having charge of the department of the navy (foreign affairs) of acts of insub- ordination and (disobedience, which shall be committed against the authority that we have confided to our consuls, and which may trouble the peace and trade of our subjects in foreign countries, to the end that the same may be provided for by us with all possible expedition. 6. In order to make all decisions in civil matters definitive, our con- suls shall be assisted by two of our suivjects, who shall be chosen from among the people of most respectability (notables) in the consular dis- trict, and on whom we confer a deliberative voice; for this purpose the said persons (notables) shall first take before the consuls the oath in such case required; they will not, however, be obliged to repeat the oath once taken when the same persons continue to be associated with the consuls for the purpose of administering justice. 7. The consul, or the ofQcer representing him, shall, nevertheless, alone pronounce judgment in the seaports where it shall be impossible to procure such persons of respectability (notables); and this impossibility shall always be set forth in the decisions. 8. That one of the oflQcers of the consulate intrusted with the chan- cery of the consulate shall perform, under the oatJi of office which he shall have taken, the duties of clerk of the court, in matters both civil and criminal, as well as the duties of notary public; he shall make out, furthermore, all summons, and shall serve in person all writs in order to supply the want of a bailiff. 9. When a petition is made or an action brought before the consul, the party shall himself present his complaint ; and in case he cannot do this, it shall be lawful for him to supply his place by an attorney legally appointed, or by making at the chancery of the consulate, on the subject- matter iii question, a circumstantial declaration, a certified copy of which S, Mis, 89 2 18 JUDICIAL EXTRATERRITORIAL RIGHTS. Shall be delivered to him, which (copy) shall be presented to the consul to take the place of the said complaint. 10. Upon the said complaint or declaration in a civil action, the consul shall order the parties to appear in person, at the place, day and hour which he shall deem proper to fix, taking; into consideration the places and circumstances ; he is also authorized to order the parties to appear from hour to hour, in cases which appear to him to demand much ex- pedition ; what he orders shall be executed in all cases in spite of any opposition or appeal. 11. The said complaint ' or declaration shall be served by the officer who performs the duties of chancellor, with the documents sustaining the demand ; and it they are too long tlie party can deposit them at the chancery, where they shall be shown to the defendant without being removed. 12. This legal notice shall be served verbally on the person of the defendant or at his residence, if it shall be known at the consulate, and upon those who shall not have a domicile, who shall have absented themselves or cannot be found, bynotices posted in the chancery of the consulate; mention shall be made, in the original and in the copy, of the name of the defendant, of the person Avith whom the legal notice shall have been left, or of the notice which shall have been posted ; summons shall be served on the defendant to appear before the consul on the day, place, and hour indicated by his order ; the original and the copy shall be signed by the ofQcer performing the duties of chancel- lor; all this on penalty of becoming void, and without the necessity of observing any other formalities. 13. Seamen and passengers who have no other residence than on shipboard shall be there summoned, in the form prescribed by the jjre- ceding article. 14. Parties must appear before the consul on the place, day, and hour indicated by his order. 15. The parties can, however, in case of sickness, absence, or other disabilities, transmit to the consul written statements subscribed by them, which shall contain their prayers and defenses, and to which they shall annex their documents respectively, if the said parties do not prefer to be represented by attorneys in fact, or afflldavits arivate writings or signatures which may result in proofs, or indications, he shall add them to the documents of the prosecution, after having put his initials to them ; they shall be shown the accused at the time of his examination ; the consul shall ask if he has written or signed them, or whether he wishes to, or can identify them ; he shall in all cases be called upon to aflBx his ini- tials to them. 13. In case the accused shall refuse to identify the writings and sig- natures seized, the consul shall procure, if possible, papers for the pur- pose of comparison, which shall be signed by his initials and added to the documents of the prosecution, after having been brought before the accused in the form prescribed by the precedijig article and with the same questions. Proof of these writings and signatures shall be made before the judges 24 JUDICIAL EXTEATEERITOEIA.L EIGHTS. who shall give final judgment, as well upon the papers above mentioned as upon all others which may be produced before judgment. 14. The writings and signatures seized by the consul shall also be shown, at the time of the examination, to the witnesses, who shall be called on to state any knowledge they may have thereof. 15. In case of forgery, the consul shall conform to the three preceding articles, but these may be supplemented as much as necessary by other formalities to be prescribed by the judges in the case. 16. All articles tending to prove the criminality of the accused shall be deposited at the chancery, and a report shall be drawn up of this de- posit, which shall be signed by the consul and the clerk. The articles shall be exhibited to the accused at the time of his ex- amination, and to the witnesses at the time of their examination ; both the accused and the witnesses shall be asked to declare whether they identify them. 17. In the prosecution of an inquiry not provided for in Article 6 above, the consul shall issue an order fixing the day and hour on which the witnesses shall present themselves before him. In accordance with this order, French subjects named as witnesses, shall be summoned by the of&cer discharging the duties of chancellor. In the case of foreigners, the consul shall make requisitions upon the foreign consuls, in accordance with the usage in the port, for the purpose of obtaining an order compelling them to ajjpear, and, in cases concern- ing the subjects of powers in whose territory the consulates are estab- lished, the consul shall conform for the purpose of procuring their ap- pearance to the agreements and usages observed in the different con- sulates. 18. Before giving his testimony, each witness shall be sworn to speak the whole truth and nothing but the truth. The consul shall ask his name, christian names, age, occupation, residence, whether he is a serv- ant, relative, or connection of the party making the complaint, or of the person who has suffered injury, or of the accused. The question and the answer of the witness shall be noted. When the religious belief of a witness prevents him from taking the oath above prescribed, or from making any kind of affirmation, the record shall state the fact, and he shall be examined without being sworn. 19. Witnesses shall give their testimony orally and separate from each other. Bach deposition shall be written in French by the clerk ; it shall be signed by the witness after being read to him, and after he declares that he adheres to it, and by the consul and the clerk ; if the witness cannot or will not sign, the fact sliall be noted. 20. The official reports of inquiry into a crime shall bs' numbered and signed with his initials on each page, by the consul, and shall be closed by an order which he shall give, either to proceed to a further exami- nation or to remit the matter for hearing when the offense is a simple violation of police regulations, or to proceed, in accordance with the rules hereinafter laid down, to a verification of the evidence, and to the confrontation of the witnesses and accused when there shall be evidence of a crime punishable by a corporal or infamous punishment. Nevertheless, the consul may, in any case when he shall deem it proper, confront the witnesses and the accused. 21. If it is expedient, in accordance with the preceding article, to read to the witnesses their depositions, ^'erify them, and to confront the JUDICIAL EXTEATEERITORIAL RIGHTS. 25 witaesses with the accused, the consul shall fix, in his order, the day and hour on which the prooteding shall take place. 22. This order shall be made known to the accused three days before the day fixed upon, and he shall be served with a copy of the informa- tion. The accused shall be notified of the privilege which he has of eniploying counsel at the confrontation ; if he does not avail himself of this privilege, counsel on his behalf may be named by the consul. This counsel may confer freely with liim. 23. The consul shall cause the witnesses to appear before him on the day fixed, in the manner prescribed in Article 17. He need not call witnesses who shall have declared, in the prelimi- nary investigation, that they have no knowledge of the matter ; he shall, however, call them if the accused requires it. French witnesses shall be bound, in all cases provided for by the fore- going articles, to obey the citation. Those who fail to appear may be condemned to a fine not exceeding one hundred francs. They shall be cited anew ; if they show legitimate excuses the consul may remit this fine. The consul shall always have the right to order, even on the first fail- ure to appear, that the defaulters shall be arrested and compelled to testify. 24. In order to verify the testimony a reading shall be made sepa- rately and privately, to each witness, of his deposition, by the clerk, and the witness shall declare whether he wishes to add or to retract anything, and whether he adheres to it. The consul may, at the time of the veri- fication of the evidence, question the witnesses in order to elucidate or explain their depositions. The witnesses shall sign their verifications after the reading, or shall declare that they do not know how to sign or that they cannot do so. Bach verification shall, furthermore, be signed by the consul and the clerk. The record shall be numbered and signed in initial on every page by the consul. 25. After the verification of the testimony, the witnesses shall be con- fronted with the accused. For this purpose the consul shall cause the latter to appear, in the presence of whom each witness shall again be sworn to speak the whole truth and nothing but the truth. 26. The declaration of the witness shall be read to the accused; the witness shall be asked to declare if the accused is indeed the person of whom he has intended to speak. If the accused or his counsel notice any contradiction in the testimony, or any other circumstance which may benefit him, both may ask the consul to question the witness on this point. The accused and his counsel shall have the right to question the wit- ness, through the consul, on all points which they deem necessary for the elucidation of facts, or for the explanation of the testimony. They shall not interrupt the witness in the course of his testimony. The counsel for the accused cannot make answer for the latter, nor suggest to him any statement or reply. 27. When a witness cannot present himself at the confrontation, his place shall be supplied by the reading of his deposition. This reading shall be made in the presence of the accused and his counsel, whose observations shall be recorded in the official report. 28. The accused can, either personally, or by his counsel, make ob- jections to the witnesses. He is permitted to make objections in every stage of the proceedings, as well before as after knowledge of the ac- cusations. If he shall make objections at the time of the confrontation, the 26 JUDICIAL EXTRATEREITORIAti EIGHTS. ■witness shall be required to answer these objections, and mention shall be made in the official report of what the accused and the witness shall have said respectively on this subject. 29. If there are several accused persons, they shall also be confronted with each other, after their testimony shall have been read to them sep- arately, in the forms prescribed for the reading of testimony to wit- nesses. 30. The confrontations shall be written down in a separate book, num- bered and signed in initial on every page by the consul. Each confronta- tion shall be signed respectively by the accused and the witness, after it shall have been read to them by the clerk ; if they cannot or will not sign, mention shall be made of the cause of their refusal. Each con- frontation shall likewise be signed by the consul and the clerk. 31. The accused shall, in all stages of the proceedings, have the right to offer facts in his own justiflcation, and the proof of these facts may be admitted even when they have not been set forth either in the ex- aminations or other instruments of the proceedings. When they shall have been offered, the accused shall be called on to name his witnesses ; mention shall be made of the whole matter in a report, at the end of which the consul shall order, as of course, that the witnesses shall be summoned, aud by him heard on the day and hour that he shall appoint, pursuant to the rules prescribed for inquiries. 32. In the inquiry, which shall take place pursuant to the preceding article, the witnesses shall first be called upon to declare in regard to the facts in justification set forth in the r(icord ; the consul may then put such questions to the witnesses as he may deem necessary for dis- covery of the truth. 33. Examinations, verifications of the testimony, and confrontations in the case of witnesses who do not understand the French language, shall be carried on by the aid of a sworn interpreter of the consulate or any other interpreter who shall be appointed by the consul. In the latter case, the consul shall cause the interpreter to swear to translate faithfully ; there shall be drawn up a report thereof, which shall be an- nexed to the documents in the case. This oath shall serve for all pro- ceedings in the same action which may require the services of the same interpreter. Examinations, verifications, and confrontations shall be signed by the interpreter in e\'ery place where the witness shall have signed or de- clared that he cannot. In any case when the religious belief of an interpreter prevents his taking the required oath, or making any other affirmation, the report shall certify this fact. 34. In case of the flight or escape of the accused, the consul shall draw up a report signed by himself and the clerk, stating that unavailing search has been made, and that it has not been possible for him to se- cure the accused; this report, annexed to the documents in the case, shall take the place of every other formality to prove the contumacy. 35. The consul shall take possession of all the effects, valuable papers, and documents belonging to the fugitive from justice, after an inventory and description has been made thereof by the clerk. 36. The proceedings in contumacy shall be begun with all possible expedition, by inquiries, by examination of witnesses, and by the ex- hibition to the said witnesses of documents and other objects which may serve to convict. 37. The preliminaries terminated, the case shall be submitted to the consular tribunal. JUDICIAL EXTRATERRITORIAL RIGHTS. 27 This tribunal shall be composed of the consul, or the person who shall perform his duties, and two French subjects, chosen by him from among the people of respectability residing in the jurisdiction of the consulate. 38. These two persons shall be named in advance for the whole year. They may be reappointed. In case of absence or disability, they may be temporarily replaced by such other persons (notables) as the consul shall name, and mention shall be made of the reasons for this substitution in the order or judgment of the consular tribunal. 39. The two persons (notables) named by the consul shall also be sworn. A report of the completion of that formality shall be drawn up in the record book of legal instruments of the chancery. 40. In case it shall be impossible to compose the consular tribunal of such persons (notables), the consul shall institute proceedings alone, fol- lowing the rules hereinafter prescribed, upon condition of making note of this impossibility in his orders and judgments. 41. The consular tribunal, composed either of the consul and the said persons (notables), or of the consul alone, shall, in accordance with the above articles, decide as follows : If the act presents neither a violation of regulations, misdemeanor, or crime, or if there shall be no charges of sufftcient gravity against the accused, the tribunal shall declare that the prosecution be dismissed. If the tribunal is of opinion that the act is nothing but a simple vio- lation of police regulations the accused shall be sent to a hearing to be there judged pursuant to Title II hereafter. In the two cases above-named the accxised, if under arrest, shall be set at liberty, and if he has furnished bail it shall be discharged. 42. If the judges consider that the act constitutes a misdemeanor, and the accusations are sufficient to sustain it, the accused shall be re- ferred to a hearing. In this latter case, If the misdemeanor entails the penalty of imprison- ment, the accused, if he is under arrest, shall be held so for the time being, unless he be admitted to bail, according to the terms of Article 9. If the accused is registered, as mentioned in Article 8, or if the mis- demeanor does not entail the penalty of imprisonment, the accused shall be set at liberty, upon condition of presenting himself on the day of the hearing. 43. If the act entails a corporal or infamous punishment, and if the charge is sufficiently established, the consular tribunal shall issue an order of arrest against the accused, and the proceedings shall subse- quently take place in accordance with the rules piescribed by Title III hereinafter. 44. When the consular tribunal shall have declared that there is not ground to continue prosecution, or when it shall have decided that an act complained of as a crime or misdemeanor is a simple violation of regulations, or finally, when it shall have decided that an act having the elements of a crime is a minor offense (attribne a la police eorrection- nelle), the party acting in his own name (partie civile) shall have the right to except to the order, upon condition of making the declaration thereof at the chancery of the consulate, within three days, counting from the service of the notice upon him of the order. The party acting in his own name (partie civile) must notify the ac- cused of his objections within the eight days following, and summon him to produce before the tribunal such statement in his behalf as he shall deem proper. 28 JUDICIAL EXTEATEERITORIAL EIGHTS. These exceptious shall not prevent the accused from being set at liberty if this has been ordered before the exceptions were offered by the party acting in his own name {partie civile), or if prononnced after- wards, without prejudice to the further execution of the order of arrest which may be issued by the tribunal. 45. The right of making exceptions shall belong, in every case, to the public prosecutor of the imperial court having cognizance of the orders of the consular tribunal, in conformity with the terms of Title III here- after. His exception shall be declared in the manner and within the period specified by Article 79 of this law. Title II. — Of jud&mbnt in the case op minor offenses and MISDEMEANORS. 46. The consular court shall take cognizance of misdemeanors, either by direct summons, or when the case has been referred to it in accord- an(je with Articles 20 and 42 above. The consul shall decide alone in matters of simple police ; he shall take cognizance, either by direct summons, or when the case shall have been referred to him in accordance with Articles 20 and 41. He shall conform to Articles 47, 48, 49, 51, and 52 hereinafter. 47. The day of the hearing shall be fixed by order of the consul ; there shall be at least a period of three days between the summons and the judgment when the accused shall reside in the place in which the con- sulate is established. If he shall not reside there the order shall de- clare, taking the distances of the places iuto consideration, the period within which he shall appear. 48. The person summoned shall appear in person or by a specially qualified attorney. In matters relating to minor offenses, however, when the law shall pronounce the penalty of imprisonment, the accused should present himself in person, and, in other cases, the tribunal may order him to appear. 49. The preliminary proceedings at the hearing shall take place in the following order : The oiflcial reports and statement of facts shall be read ; the witnesses for and against shall be sworn and heard; the objections offered shall be decided upon; a reading shall take place of the written declarations of those witnesses who, by reason of their living at a distance, or for any other legitimate cause, cannot appear. Defaulting witnesses, not included in the cases above, may he condemned and held personally bound to appear conformably with Article 23. Every document or object that may serve to convict or acquit the accused shall be exhibited to the witnesses and the parties in the suit; the party acting in his own name {partie civile) shall be heard; the accused or his counsel, as well as the parties accountable in damages, shall offer their defense; reply shall be allowed the party acting in his own behalf {partie civile) ; but the accused, or his counsel, shall always speak last; judgment shall be pronounced immediately, or, at latest, at a hearing which shall be fixed and which shall not be delayed more than eight days. ' The judgment shall make mention of the fact that these formalities have been observed; the reasons in the case shall be stated, and if a condemnation is pronounced the terms of the law applicable to the case shall be inserted. If the accused is acquitted he shall be set at liberty immediatelv. or his bail shall be discharged. ' JUDICIAL EXTEATEERITORIAL RIGHTS. 29 50. In case, after the preliminary procedure at the hearing, the act impvited to the accused shall appear to have the elements of a crime, the proceedings shall take place in the following manner: If the accused has been directly summoned to the hearing, in con- formity with Article 46, he shall be sent before the consul, who shall proceed to inquiries, examination^, verifications, and confrontation in the manner prescribed in Title I of this law. If the accused has been arraigned at the heaiing, in accordance with an order under Article 20, he shall be sent before the same consul, who shall proceed to such additional inquiry as may seem good to him, and to the formalities of verification and confrontation. Finally, if the accused has not been brought before the court until after a full preliminary proceeding, the consular tribunal shall enter judgment against him of arrest, and further proceedings shall take place in accordance with the rules prescribed by Title III hereinafter. In case, after the preliminary proceedings at the hearing, the act im- puted to the accused shall be decided to be only a violation of police regulations the consular tribunal shall pronounce judgment conformably with Article 54 of the present law without appeal. 51. Condemnations by default, in matters involving minor offenses and violations of police regulations, shall be considered void if, within eight days of notice made thereof upon the condemned in jjcrson, at his dom- icile, actual or elected, or even at his last residence, when he shall no longer have an actual domicile or residence in the jurisdiction of the consulate, he offers his objections to the execution of the judgment by a declaration at the chancery of the consulate. The tribunal can, however, taking into consideration the distance of the last domicile and the greater or less facility of communication, extend, by its judgment, this period as shall appear to it proper. In case of acquittal pronounced by the final judgment, the expenses arising from the summons, the notice of judgment by default, and the exceptions may be charged to the accused. 52. Registered French subjects cannot be refused admittance to the place where the consular tribunal shall sit during the sessions, except when the common law of France authorizes closed doors. The consul shall have charge of the preservation of order at the sit- tings of the court. 53. In the case of minor offenses the record of the hearing shall state the names, Christian names, ages, callings, and residences of the wit- nesses who shall have been heard ; their oath to speak the whole trath and nothing but the truth ; their declarations stating whether they are relatives, connections by marriage, or servants of the parties in the case, and the objections which shall have been made to their admissibility ; it shall contain an abstract of their statements. 54. In matters of violations of police regulations, the consul shall give judgment finally and without appeal. If there is a civil party {partie civile), and if the demand for damages exceeds one hundred and fifty francs, the consul shall remit this party to a civil action, and shall nevertheless pass judgment on the offense. 55. In matters involving minor offenses {matter e correctionnelle), an appeal may be taken from the judgment. The appeals shall be carried to the imperial court at Aix. The right of appeal shall belong to the accused and the persons ac- countable in damages and to the public prosecutor of the imperial court of Aix. It shall belong likewise to the civil party [pnrtie civile), as re- gards his civil interests alone. 30 JUDICIAL EXTRATEEEITOEIAL EIGHTS. 56. The declaration of appeal shall be made at the chancery of the consulate by the appellant in person or by his attorney within ten days after the judgment is pronounced, if adverse. During this period and during the procedure on appeal, the execution of the judgment of con- demnation shall be delayed. No appeal can be taken by the defaulter from judgments by default. Such judgments may be set aside by him only by proceedings in error for cause shown. 57. The declaration of appeal should contain election of domicile in the city of Aix, in default of which the notices to be made to the appellant can be made at the ofiice of the public prosecutor before the imperial court of Aix, without any extension of time by reason of distances. The accused shall be notified within eight days of a declaration of appeal by the civil party in the action, and shall be served with summons to appear before the imperial court. The appeal of the public prosecutor shall be declared in the forms and within the periods provided by Article 79 hereinafter. 58. The pi'ocedure, the declaration of appeal, and the petition, if one has been filed by the appellant, shall be immediately transmitted to the public prosecutor of the imperial court of Aix. The condemned, if he is under arrest, shall be sent on the first French ship returning to France, and shall be taken to the jail of the said court. 59. If temporary liberty is requested on the ground of an appeal, the bail shall be at least equal to the total amount of damages imposed by the judgment of the lower court, including the special fine authorized by the second paragraph of Article 75 of this law. 60. Immediately after the arrival of the documents in the case and the condemned person, if under arrest, the api)eal shall be heard in the imperial court of Aix, sitting to judge appeals in cases involving fines and imprisonment {cJiambre des appeli de police correctionnelle.) The case shall be advanced upon the docket. 61. On appeal by the civil party [partie civile), the original notice of the declaration of appeal, containing citation, shall be annexed to the documents, which should be transmitted to the court. 62. In all the cases above, the appeal shall be decided in accordance with the forms prescribed by the code of criminal procedure. Never- theless, the condemned person, not under arrest, or who has been allowed to furnish bail, can be exempted from appearing in person at the hear- ing, and may be represented by a specially authorized attorney. 63. When it shall appear to the court, in passing upon the appeal, that the act on which the consular tribunal has passed judgment, as a tribunal having cognizance of matters involving fines and impris- onment {tribunal correctionnel) constitutes a crime, it shall proceed as follows: If the preliminary inquiry has been followed by the verification of the testimony [rScolement] and by confrontation, the court shall give judgment as a court of accusation, and shall issue an order of arrest. In all other cases it shall order a supplementary inquiry, and for this purpose, shall give the consul power to pronounce iudgment as in the preceding case, except tbat it shall not grant him any further pow- ers when the procedure shall be completed. Title III.— Op Arbaignment. 64. When, in accordance with the terms of Article 43 or of Article 50 the consular tribunal shall have declared the act to entail a corporalor JUDICIAL EXTRATERRITORIAL RIGHTS. 31 infamous penalty, notice of the order of arrest shall be given immedi- ately to the accused. The latter shall be sent by the first French ship returning to France, and shall be sent, together with the record and everything serving to prove criminality, to the public prosecutor of the imx^erial court of Aix. Within the shortest possible period, the public prosecutor shall make his report to the court of accusation of the same tribunal, which shall proceed in the manner prescribed by the code of criminal procedure. 65. In cases of forgery the court of accusation shall proceed to the examinations prescribed by Articles 13 and 15 of this law. 66. If the court of accusation sees that the act has not been properly defined and constitutes only a misdemeanor, it shall cancel the order of arrest and send the accused and the record to the court of original jurisdiction of Aix, which shall condemn to fine or imprisonment (staiuera correctionneUement), permitting appeal therefrom. The court shall re- tain the accused under arrest, or order him to be set at liberty, con- formably with Article 42. The tribunal having jurisdiction pursuant to this article shall proceed in accordance with tlie provisions of the code of criminal procedure, except as hereinafter provided. The written procedure shall be read at the hearing; the witnesses, if any shall be produced, shall be heard under oath. The accused, if he has been set at liberty, shall have the right of be- ing represented by a special attorney. The tribunal shall have power to change the penalty of imprisonment to a special fine, in accordance with the rules prescribed by Title V of this law. 67. If an arraignment is ordered by the court, the. decision thereon and the bill of indictment shall be served on the accused, and the latter shall be brought before the first chamber and the chamber of appeals in matters of fines and imprisonment {police correctionnelle), sitting as one court, of the imperial court of Aix, which shall give judgment jn the forms hereinafter laid down, and never with less than twelve judges sitting. When the arraignment shall have been ordered by the chamber of appeals in cases involving fines and imprisonment {police correctionelle) in conformity with Article 63, that chamber shall be replaced, for the Xrarpose of judgment of the facts in the case, by the chamber of arraign- ments {celle des mises en accusation). 68. In case exceptions are offered to the order of the consular tribu- nal by the civil party {partie civile), or by the public prosecutor, in ac- cordance with the terms of Articles 14 and 45 of this law, the documents in the case shall be transmitted, and the court of accusation shall pass judgment as above. Nevertheless, if the court of accusation charges the accused simply with a misdemeanor, it shall send him before the consular tribunal. Title IV. — Op the judgment in case op crimes. 69. The accused shall undergo a preliminary examination before one of the counsellors {conseillers) of the court, delegated by the presiding judge; a copy of the record shall be given him at the same time; he shall be asked to choose counsel; in case of not making this choice, a counsel shall be appointed for him, and mention shall be made of the whole mat' er in the examination. 70. The public prosecutor, the civil party {partie civile), and the ac- 32 JUDICIAL EXTRATERRITORIAL RIGHTS. cused shall have the right of causing witnesses to be summoned for the day of the hearing. They can, however, avail themselves of this right only in the case of those persons who shall be present on French terri- tory. The accused shall be notified of the names, occupation, and residence of the witnesses summoned, at least twenty-four hours before the hear- ing, by the public prosecutor or the civil party, and the public prosecutor shall receive a similar notice from the accused. 71. Withiu eight days after the examination, and on the day named for the judgment, tlje report shall be made on the case by one of the counsellors; the record shall be read before the court sitting at a pub- lic hearing, the accused and his counsel being present. The presiding judge shall examine the accused. The witnesses, if they have been called, in accordance with the preceding article, shall be_ next heard. The accused, however, and the public prosecutor can object to the hear- ing of a witness who shall not have been named or who shall not have been clearly described in the notice. The presiding judge may, also, in virtue of his discretionarj'^ power, cause all persons to appear whose testimony he deems useful in the dis- covery of the truth, and the court shall hear them. The witnesses summoned and the witnesses called pursuant to the dis- cretionary power shall take the oath prescribed by Article 18 of this law. 72. The civil party, or his counsel, and the public prosecutor shall be heard on motions and applications. The accused and his counsel shall state their defense. Eeply to this shall be permitted, but the accused and his counsel shall always close. The presiding judge, after having asked the accused whether he has anything further to say in defense, shall state the issues and shall cause them to be read by the clerk. The court shall decide upon the objections made to this statement. 73. The issue shall be decided successively; the presiding judge shall take the vote. A decision, either against the accused, or on the extenuating circum- stances, requires two-thirds of the votes, and in the calculation of these two-thirds, fractious, if there are any, shall be counted in favor of the accused. Tlie same vote shall be necessary for the infliction of every corporal or infamous punishment. The judgment shall be pronounced publicly; itsh'.iU contain the issues which have been stated, the reasons for the decisions, and the text of the law which shall have been applied. It shall certify the existence of the majority above required. If the judgment imposes a corporal or infamous punishment, it shall be posted in the chanceries of consulates established in the sea-ports of the Levant and the Barbary states. 74. If the accused is contumacious, the procedure shall take place as provided in Articles 465 to 478, inclusive, of the code of criminal pro- cedure. When, however, the accused shall be domiciled in the sea-ports of the I-evant or the Barbary states, notice of the order in contumacy shall be given at his domicile, and also at the chancery of the consulate, where it shall be posted. Title V.— Of penalties. 75. Violations of police regulations, misdemeanors, and crimes com- mitted by French subjects in the sea-ports ot the Levant and the Bar- JUDICIAL EXTEATEEEITORIAL RIGHTS. 33 bary states shall be punished by the penalties provided in the laws of France. Yet, in affairs involving fines and imprisonment {maiiere correctionnelle) and of minor offenses [simple police), after the judges shall have sen- tenced to imprisonment, they can, by a provision which shall be inserted in the sentence or judgment of condemnation, change this penalty to a special fiine, computed at the rate of ten francs or more for each day of imprisonment pronounced. This special fine shall be in addition to that which shall have been incurred by the delinquent, in accordance with the terms of the ordi- nary penal laws. Violations of regulations made by consuls for the police of the ports shall be punished by an imprisonment which shall not exceed five days, and by a fine which shall not exceed fifteen francs. These two penal- ties may be cumulative or separate. Title VI. — General provisions. 76. Judgments of the imperial court, rendered pursuant to this law, may be examined on appeal for the reasons and in accordance with the distinctions set forth in Title III of Book 2 of the code of criminal procedure. 77. If on appeal the judgment is reversed, the case shall be referred to another imperial court, to be prosecuted and decided anew in the forms prescribed by this law. 78. Consuls shall send to the minister of foreign affairs a list of orders made under Articles 41, 42, 43, and of judgments which shall have been made in matters involving fines and imprisonment [correctionnels], which list shall be sent within one month, at latest, after these orders and judgments shall have been made. The said list shall be transmitted by the minister of foreign affairs to the minister of justice. 79. Under instructions which shall be sent him by the minister of jus- tice, the public prosecutor of the imperial court of Aix shall have the right to cause the documents in the case and the proceedings to be sent to him. When he shall exercise his right of offering objections or of appeal pursuant to Articles 45 and 55, he must make declaration thereof at the offlce of the clerk of the court. In case of objection he shall notify the party of it, and notify him to produce his memorial, if he deems it proper. In case of appeal, he shall cause the party to be cited. The above declaration, notification, and citation shall be given within a period of six months, reckoned from the date of the orders or judg- ments, under penalty of forfeiture. 80. When there shall be occasion, pursuant to Articles 58 and 64 of this law, to send a convict or an accused, and the documents relating to the proceedings and conviction on the first French ship, captains shall be held bound to comply with the requisitions of the consul under pen- alty of a fine of from 500 francs to 2,000 francs, which fine shall be levied by the consul, subject to appeal to the imperial court of Aix. Captains can, further, be suspended from command by decree of the minister for the navy. Captains shall not be held bound to take on board a number of acccused greater than one-fifth of the number of their crew. 81. The expenses of justice incurred in the execution of this law in the sea-ports of the Levant and the Barbary states and in France ,in S. Mis. 89 3 34 JUDICIAL EXTRATERRITORIAL RIGHTS. which expenses shall be included the compensation due to captains for the passage of the accused, shall be advanced by the state; fines and other sums obtained in the administration of justice shall be paid into the public treasury. 82. Articles 39 to 81, inclusive, of the edict of June, 1778, are hereby repealed. „ , , j, ,^ -,nj.i. * ■^ This law does not affect the provisions of the law of the 10th April, 1825, relating to the prosecution and judgment of the crime of piracy. APPENDIX III. [Translation of the French law of July 8, 1852.] LAW OF JULY 8, 1852, RELATIVE TO THE JURISDICTION OF FRENCH CON- SULS IN CHINA, kND WITHIN THE DOMINIONS OF THE IMAUM OF MUSCAT. Title I.— Consular jurisdiction in china. Chaptbk I. —Civil jurisdiction. Article 1. — Disputes in civil and commercial matters which may arise in China between French citizens shall be decided by consular courts according to such of the provisions of the edict of 1778 as are still in force in ports of the Levant and the Barbary states, excepting the provisions contained in the three following articles: 2. The decisions of consular courts shall be final in the following cases : 1st. All suits in which the parties being subject to the jurisdiction of these courts, and exercising their rights, shall have declared their desire to be judged finally and without appeal. 2d. All personal suits, or suits relating to personal property, in which the amount involved shall not exceed 3,000 francs. 3d. Cross-suits, even when the amounts therein involved, joined to the principal suit^ shall exceed 3,000 francs. If the amount involved in one of the principal or cross- suits shall ex- ceed the aforesaid limits, the decision of the court upon them all shall be subject to appeal. Nevertherless, decision shall be rendered subject to appeal, in suits for damages, when they shall be based exclusively upon the principal suit itself. 3. The appeal from the decisions rendered subject to appeal by the consular courts shall be taken before the court of appeals at Pondi- cherry. That court shall proceed according to the laws and ordinances governing the administratibn of justice in the French Bast Indian colonies. 4. Appeals against the final decisions rendered by the consular courts shall be allowable to the parties only in case those courts have exceeded their powers. Chaptku IL— Criminal jurisdiction. 5. Disputes between French citizens and Chinese subjects shall be settled in accordance with the provisions of Article 25 of the treaty of September 24, 1844. 6. The law of May 28, 1836, in relation to infractions, misdemeanors, and crimes committed by French citizens in the ports of the Levant JUDICIAL EXTEATEEEITOEIAL EIGHTS. 35 and the Barbary States, shall be applicable to infractions, misdemean- ors, and crimes committed by French citizens in China, with the modi- fications resulting from this chapter. 7. Decisions by default in matters relating to misdemeanors shall be open to appeal, after the delays of the opposition. 8. The powers conferred by the law of 1836 upon the court of appeals and the court of first instance of Aix, shall belong to the court of appeals and to the court of first instance of Pondicherry, which shall proceed and decide, as the case may be, according to the laws and ordinances con- cerning the organization of the judicial system and the administration of justice in the French East Indian colonies, the provisions of Articles 62 (section 2), 66 (section 3 and following), and 68 of the aforesaid law of May 28, 1836, being, however, observed. ' 9. In case of contumacy, notice of the ordinance relative to contumacy shall be given both at the domicile of the accused and at the ofiice of the consul, in which said ordinance shall be posted up. 10. Only persons within the territory of Pondicherry shall be sum- moned as witnesses before the court or tribunal of Pondicherry. 11. Accused and condemned persons who, in the cases provided for by Articles 58 and 64 of the law of May 28, 1836, are to be removed to Pondicherry, may, in the absence of French vessels, or in case captains may refuse to take them on board in virtue of paragraph 2 of Article 80 of the said law, be. shipped on board of foreign vessels under the care of the consul. In the case of a misdemeanor, the accused, if he shall request not to be removed, shall be permitted to remain at the place where he is confined. In criminal cases the same privilege may be granted to the accused, at his request, by the consul. l^Tevertheless, the attorney-general and the court may always order the removal of the accused. 12. Consuls, independently of the extract from their orders and de- cisions which they are required, by Article 78 of the law of May 28, 1836, to address to the minister of foreign affairs, shall send, directly, a similar extract to the attorney- general attached to the court of appeals of Pondicherry, who may require the transmission of the documents and liroceedings. Title II. — Consular jurisdiction vfithin the dominions of THE Imaum op Muscat. 13. The jirovisioris of Articles 1. 2, 3, and 4 of this law shall be ap- plicable to the consulates of France within the dominions of the Imaum of Muscat. I>fevertheless, jurisdiction without appeal of consular courts, in the cases provided for by paragraphs 3, 4, and 5, Article 2, shall be limited to cases in which the amount involved does not exceed 1,500 francs. The court of appeals of the island of E6union shall discharge, for these consulates, the functions declared by the said articles to belong to the court of appeals of Pondicherry. 14. The provisious of Chapter 2 of the present law shall like^vise be applicable to infractions, misdemeanors, and crimes committed by French citizens in the dominions of the Imaum of Muscat. The powers con- ferred by the foregoing provisions upon the judicial authorities of Pon- dicherry shall be exercised by those ot the island of Eeunion and of the tribunal of Saint-Denis according to the rules of their organization. None but persons who shall be in the island of E6union shall be sum- moned as witnesses. 15. Disputes between the subjects of the Imaum of Muscat and French 36 JUDICIAL EXTRATERRITORIAL RIGHTS. citizens, of which the consuls of France are to take cognizance, accord- ing to Article 6, of the treaty of November 17, 1844, shall be decided in accordance with the provisions of Articles 1, 2, 3, and 4 of this law. Title III. — Of the exercise op the right of high ^police. 16. The consuls of Prance in China and in the dominions of the Imaum of Muscat shall be invested with the right of high police, which is con- ferred upon the consuls of France in the ports of the Levant by Articles 82 and 83 of the edict of 1778. 17. In case of urgency, and if it shall be absolutely impossible to send back directly to France a French citizen who has been expelled in vir- tue of this right, such French citizen may be placed on board of a French or foreign vessel, to be sent, according to circumstances, to one of the French colonies in the East Indies or in Oceanica, or to some point occu- pied as a French naval station. Title IV. — General provisions. 18. The functions provided as belonging to consuls by the foregoing articles shall be discharged at Canton or Macao by such oflElcer of the diplomatic mission in China as may be designated by the President of the Eepublic. In case the consulates shall be vacant, or the consuls absent or prevented from acting, in China or in the dominions of the Imaum of Muscat, the officers or other persons who shall be called to represent or take the place of the consuls shall discharge the functions which are declared to belong to the latter by the present law. APPENDIX IV. STATUTE OF GREAT BRITAIN, 6 AND 7 VICTORIA, CHAP. XCIV. 6 and 7 Victoriae, cap. xciv. AN ACT to remove doubts as to the exercise of power and jurisdiction by Her Maj- esty within divers countries and places out of Her Majesty's dominions, and to ren- der the same more effectual. [24th August, 1843. ] "Whereas, by treaty, capitulation, grant, usage, sufferance, and other lawful means. Her Majesty hath power and jurisdiction within divers countries and places out of Her Majesty's dominions : And, whereas, doubts have arisen how far the exercise of such power and jurisdiction is controlled by and dependent on the laws and customs of this realm, and it is expedient that such doubts should be removed :" Be it therefore enacted by the Queen's most Mxcelknt Majesly, hy and with the advice mid consent of the Lords spiritual and temporal, and Commons in this present Parliament assemlled, and by the authority of the same, That it is and shall be lawful for Her Majes ;y to hold, exercise, and enjoy any power or jurisdiction which Her Majesty now hath or may at any time hereafter have within any country or place out of Her Majesty's dominions, in the same and as ample a manner as if Her Majesty had acquired such power or jurisdiction by the cession or conquest of terri- tory. II. And be it enacted, That every act, matter and thing which may at' any time be done, in pursuance of any such power or jurisdiction of Her JUDICIAL EXTEATEEEITOEIAL RIGHTS. 37 Majesty iu auy country or place out of Her Majesty's dominions, shall, in all courts ecclesiastical and temporal and elsewhere within Her Maj- esty's dominions, be and be deemed and adjudged to be, in all cases and to all intents and purposes whatsoever, as valid and effectual as though the same bad been done according to the local law then in force within such country or place. III. And be it enacted, That if in any suit or other proceedings, whether civil or criminal, in any court ecclesiastical or temporal within Her Majesty's dominions, any issue or question of law or of fact shall arise for the due determination whereof it shall, in the opinion of the judge or judges of such court, be necessary to produce evidence of the exist- ence of any such power or jurisdiction as aforesaid, or of the extent thereof, it shall be lawful for the judge or judges of any such court, and he or they are hereby authorized, to transmit, under his or their hand and seal or hands and seals, to one of Her Majesty's principal secretaries of state, questions by him or them properly framed respect- ing such of the matters aforesaid as it may be necessary to ascertain in order to the due determination of any such issue or question as afore- said ; and such secretary of state is hereby empowered and required, within a reasonable time in that behalf, to cause proper and sufficient answers to be returned to all such questions, and to be directed to the said judge or judges, or their successors, and such answers shall, upon production thereof, be final and conclusive evidence, iu such suit or other proceedings, of the several matters therein contained and required to be ascertained thereby. IV. "And whereas it may in certain cases be expedient that crimes and offenses committed within such countries or places as aforesaid should be inquired of, tried, determined, and punished within Her Majesty's dominions ; " Be it enacted, That it shall and may be lawful for any person having authority derived from Her Majesty in that behalf, by warrant under his hand and seal, to cause any person charged with the commission of any crime or offense the cognizance whereof may at any time appertain to any judge, magistrate, or other officer of Her Majesty within any such country or place as aforesaid, to be sent for trial to any British colony which Her Majesty may by any order or orders in council from time to time appoint in that behalf; and upon the arrival of such person within such colony it shall and may be lawful for the supreme court exercising criminal jurisdiction within the same to cause such person to be kept in safe and proper custody, and, so soon as conveniently may be, to inquire of, try, and determine such crime or offense, and upon conviction of the person so charged as aforesaid to correct and punish him according to the laws in force in that behalf within such colony, in the same manner as if the said crime or offense had been committed within the jurisdiction of such supreme court: Provided ahcays, That before any such person shall be sent for trial to any such colony as aforesaid it shall be lawful for him to tender for examination to the judge, magistrate, or other officer of Her Majesty to whom the cognizance of the crime or offense with which he is charged may appertain, within the country or place where the same may be al- leged to have been committed, any competent witness or witnesses, the evidence of whom he may deem material for his defense, and whom he niay allege himself to be unable to produce at his trial in the said colony; and the said judge, magistrate, or other officer shall thereupon proceed in the examination and cross-examination of such witness or witnesses in the same manner as though the same had been tendered at a ti-ial before such judge, magistrate, or other officer, and shall cause the evidence so 38 JUDICIAL EXTRATEKRITOKIAL RIGHTS. takeu to be reduced into writing, and sliall tran smit a copy of such evidence to tine supreme court liefore which the trial of such person is to take place, together with a certificate under his hand and seal of the correctness of such copy; and thereupon it shall be lawful for the said supreme court, and it is hereby required, to allow so much of the evidence so taken as aforesaid as would have been admissible according to the law and practice of the said supreme court, had the said witness or witnesses been produced and examined at the trial before the said court, to be read and received as legal evidence at such trial : Provided also. That if it shall be made to appear at such trial that the laws by which the person charged with any criminal act would have been tried had his trial taken place before a judge, magistrate, or other ofiQcer of Her Majesty in the country or place in which such act may be alleged to have been committed, vary from or are inconsistent with the laws in force within such colony, in respect either of the criminality of the act charged, or of the nature or degree of the alleged crime or offense, or of the punishment to be awarded for the same, such supreme court is hereby empowered and required to admit and give effect to the laws by which such person would have been so tried as aforesaid, so far as but not further or otherwise than the same relate to the criminality of such act, or to the nature or degree of such crime or offense, or to the punishment thereof: Provided also, That nothing herein contained shall be construed to alter or repeal aiiy law, statute, or usage by virtue of which any crime or offense committed out of Her Majesty's dominions might, at the time of the passing of this act, be inquired of, tried, determined, and punished within Her Majesty's dominions, or any part thereof, but the same shall remain in full force and effect, anything herein contained to the contrary notwithstanding. V. "And whereas it may likewise in certain cases be expedient that the sentences passed within such countries and places as aforesaid at the trial of crimes and offenses within the same should be carried into effect within Her Majesty's dominions;" Be it enacted, That if any offender shall have been sentenced to suffer death or imprisonment for or in respect of any crime or offense of which such offender shall have been lawfully convicted before any judge, magistrate, or other officer of Her Majesty within any such country or place as aforesaid, it shall be law- ful for any person having authority derived from Her Majesty in thai behalf, by warrant under his hand and seal, to cause such offender to be sent to any British colony which Her Majesty may by any order or orders in council from time to time appoint in tliat behalf, in order that the sen- tence so passed upon such offender may be carried into effect within the same; and the magistrates, jailers, and qther officers to whom -it may appertain to give effect to any sentence passed by the supreme court exercising criminal jurisdiction within such colony are hereby empow- ered and required to do all acts and things necessary to carry into effect the sentence so passed upon such offender, in the same manner as though the same had been passed by such supreme court. VI. And be it enacted, That if any offender shall have been ordered or sentenced to be transported beyond the seas by any judge, magis- trate, or other officer of Her Majesty within any such country or place as aforesaid, or, having been adjudged to suffer death, shall have re- ceived Her Majestj 's most gracious pardon upon condition of transpor- tation beyond the seas, it shall be lawful for any person having authority derived from Her Majesty in that belialf to cause such offender to be sent to any place beyond seas to which convicts may at any time be lawfully transported from any part of Her Majesty's dominions, and, if there shall be no convenient means of transporting such off'ender with- JUDICIAL EXTRATEERITOEIAL EIGHTS. 39 out bringing him to England^ to cause such offender to be brought to England in order to be transported, and to be imprisoned in any place of confinement provided under the authority of any law or statute relat- ing to the transportation of offenders convicted in England, until such offender shall be transported or shall become entitled to his liberty ; and as soon as any such offender shall have arrived at the place to whicjh he may be transported, or, if brought to England, shall have been there imprisoned, as aforesaid, all the provisions, rules, regulations, authori- ties, powers, penalties, matters, and things concerning the safe custody, confinement, treatment, and transportation of any offender convicted in Great Britain shall extend and be construed to extend to such of- fender as fully and effectually, to all intents and purposes, as if such offender had been convicted and sentenced at any session of jail deliv- ery holden for any county in England. VII. And he it enacted, That if any suit or action shall be brought in any court within Her Majesty's dominions against any person or per- sons for anything done in ptirsuance of any such power or jurisdiction of Her Majesty as aforesaid or of this act, then and in every such case such action or suit shall be commenced or prosecuted within six months after the fact committed, and not afterwards, except where the cause of action shall have arisen out of Her Majesty's dominions, and then within six months after the plaintiff or plaintiffs and defendant or defendants shall have been within the jurisdiction of the court in which the same may be brought ; and the same and every such action or suit shall be brought in the county or place where the cause of action shall have arisen, and not elsewhere, except where the cause of action shall have arisen out of Her Majesty's dominions; and the defendant or defendants shall be entitled to the like notice, and shall have the like privilege of ten- dering amends to the plaintiff or plaintiffs, or their agent or attorney, as is provided in actions brought against any justice of the peace for acts . done in the execution of his offlce by an act passed in the twenty -fourth year of the reign of King George the Second, intituled An act for the rendering justices of the peace more safe in the execution of their office, and for indemnifying constables and others acting in obedience to their warrants ; and the defendant or defendants in every such action or suit may plead the general issue, and give the special matter in evidence; and if the matter or thing complained of shall appear to have been done under the authority and in execution of any such power or jurisdiction of Her Majesty as aforesaid or of this act, or if any such action or suit shall be brought after the time limited for bringing the same, or be brought and laid in any other county or place than the same ought to have been brought or laid in as aforesaid, then the jury shall find for the defend- ant or defendants; and if the plaintiff' or plaintiffs shall become non- suit, or discontinue any action after the defendant or defendants shall have appeared, or if aVerdict shall pass against the plaintiff' or plain- tiffs, or if upon demurrer judgment shall be taken against the plaintiff or plaintiffs, the defendant or defendants shall and may recover treble costs, and have the like remedy for recovery thereof as any defendant or defendants hath or have in any cases of law. YIII. And be it enacted, That from and after the first day of October in the year one thousand eight hundred and forty-four so much of an act passed in the sixth year of His late Majesty King George the Fourth, intituled An act to repeal certain acts relating to the governor and company of merchants of England, trading to the Levant Seas, and the du- ties payable to them; and to authorize the transfer and disposal of the pos- sessions and property of the said governor and company for the public ser- 40 JUDICIAL EXTBATEREITOEIAL EIGHTS. vice, as provides, " that from and immediately after the enrolment of any such deed or instrument as therein mentioned all such rights and duties of jurisdiction and authority over His Majesty's subjects resort- ing to the ports of the Levant, for the purposes of trade or otherwise, as were lawfully exercised and performed, or which the letters patent or acts by the said act recited, or any of them, authorized to be exercised and performed, by any consul or other ofiScers appointed by the said company, or which such consuls or other of&cers lawfully exercised and performed under and by virtue of any power or authority whatever, should, from and alter the enrolment of such deed or instrument as aforesaid, be and become vested in and should be exercised and per- formed by such consuls and other officers respectively as His Majesty might be pleased to appoint for the protection of the trade of His Majesty's subjects in the ports and places respectively mentioned in the said letters patent and acts, or any or either of them ; " and also that from and after the passing of this act an act passed in the parliament holden in the sixth and seventh years of His said late Majesty King William the Fourth, intituled An act to enable His Majesty to make regu- lations/or the better defining aad establishing the poicers and jurisdiction of His Majesty^s consuls in the Ottoman Empire, shall be and the same are hereby repealed, save as to any matter or thing theretofore done under the authority of the same respectively. IX. And be it enacted. That this act may be amended or repealed by any act to be passed daring this session of parliament. APPENDIX V. [British order in council of November 30, 1864. British and Foreign State Papers, vol. LIV, p. 86.5.] BRITISH ORDEE IN COUNCIL EEVISING THE ORDEES IN COUNCIL OF JANUARY 9, 1863,* AND NOVEMBEE 17, 1863,t EELATIVE TO THE POWEE AND JURISDICTION OF HER MAJESTY IN THE OTTOMAN DOMINIONS,* NOVEMBER 30, 1864. At the Court of Windsor, the 30th day of November, 1864. Present, the Queen's most P]xcellent Majesty in council. Whereas by the act of the session of Parliament of the 6th and 7th years of Her Majesty's reign, cap. 94,§ " to remove doubts as to the ex- ercise of power and jurisdiction by Her Majesty within divers countries and places out of Her Majesty's dominions, and to render the same more effectual," hereinafter called tlie Foreign Jurisdiction Act, it was enacteil (among other things) that it was and should be lawful for Her Majesty to hold, exercise, and enjoy any power or jurisdiction which Her Majesty then had or might at any time thereafter have within any country or place out of Her Majesty's dominions, in the same and as ample a man- ner as if Her Majesty had acquired such power or jurisdiction by the cession or conquest of territory : And whereas Her Majesty has had, and now has, power and jurisdic- tion in the dominions of tbe Sublime Ottoman Porte: *Br. & For. State Papers, Vol. LIII, page 313. tBr. & For. State Papers, Vol. LIII, page 365. ) "London Gazette" of Deoeralier 2, 1864. ^ Br. & For. State PaperB, Vol. XXXI, page 984. JUDICIAL KXTRATEREITORIAL RIGHTS. 41 And whereas Her Majesty was pleased, by and with the advice of her privy council, on the 9th day of January, 1803, and the 17th day of November, 1863, to make, by orders in council dated on those days respectively, provision for the exercise of her power and jurisdiction aforesaid : And whereas it has seemed to Her Majesty, by and with the advice of her privy council, to be expedient at the present time to revise the provisions of the said orders, and to make further provisions for the due exercise of Her Majesty's power and jurisdiction aforesaid, and for the more regular and efficient administration of justice and the bet- ter maintenance of order among all classes of Her Majesty's subjects and of persons enjoying Her Majesty's protection resident in or re- sorting to the dominions of the Sublime Ottoman Porte: Kow, therefore. Her Majesty,, by virtue of the powers in this behalf by the Foreign Jurisdiction Act or otherwise in her vested, is pleased by and with the advice of her privy council to order, and it is hereby or- dered, as follows : I.— Peeliminaey. 1. This Order shall commence from and after the 31st day of Decem- ber, 1864. 2. The orders of the 9th day of January, 1863, and the 17th day of November, 1863, are hereby repealed. This repeal shall not aifect the past operation of those orders, or either of them, or any appointment made or thing done under them, or either of them. 3. Pending proceedings shall be regulated by this order as far as the nature and circumstances of each case admit. 4. In this order the term "the Ottoman dominions" means the do- minions of the Sublime Ottoman Porte; the term "native Indian sub- ject of Her Majesty" means a native of India (as defined in the act of parliament of 1858 "for the better government of India"), not being of European descent; the term "month" means calendar month; words importing the plural or the singular may be construed as referring to one person or thing, or more than one person or thing, and words im- porting the masculine as referring to females (as the case may require). 5. The provisions of this order relating to British subjects apply to all subjects of Her Majesty, whether by birth or by naturalization, and also to all persons enjoying Her Majesty's protection in the Ottoman dominions. The provisions of this order relating to foreigners apply to subjects of the Sublime Ottoman Porte and subjects or citizens of any other power or state not being enemies of Her Majesty. IL—G-ENBKAL PROVISIONS EBSPBCTINa HbR MAJESTY'S JURISDIC- TION. 6. All Her Majesty's jurisdiction exercisable in the Ottoman domin- ions for the judicial hearing and determination of matters in difference between British subjects, or between British subjects and foreigners, — or for the administration or control of the property or persons of Brit- ish subjects, — or for the repression or punishment of crimes or offenses committed by British subjects, — or for the maintenance of order among British subjects, — shall be exercised under and accordiug to the provis- ions of this order, and not otherwise. 7. Subject to the other provisions of this order the civil and criminal 42 JUDICIAL EXTRATERRITORIAL RIGHTS. jurisdiction aforesaid shall, as far as circumstances admit, be exercised upon the principles of and in conformity with the common law, the rules of equity, the statute law, and other law, for the time being in force in and for Euglarid, and with the powers vested in and pursuant to the course of procedure and practice observed by and before courts of justice and justices of the peace in England, according to their re- spective jurisdictions and authorities. 8. Nothing in this order shall be deemed to deprive Her Majesty's consular. officers of the right to observe and to enforce the observance of any reasonable custom obtaining within the Ottoman dominions, or to deprive any person of the benefit thereof, except where this order contains some express and specific provision incompatible with the ob- servance of such custom. 9. Except as to offenses against the capitulations, articles of peace, and treaties between Her Majesty and the Sublime Ottoman Porte, or against any rules and regulation for the observance thereof, or for the maintenance of order among British subjects in the Ottoman domin- ions, made by or under the authority of Her Majesty, or against any of the provisions of this order, or of any rule made under it. No act done by a British subject in the Ottoman dominions, or on board a British vessel within those dominions, which would not by a court of justice having criminal jurisdiction in England be deemed a crime or offense, rendering the person doing such act amenable to pun- ishment in England, shall, in the exercise of criminal jurisdiction under this order, be deemed a crime or offense, rendering the person doing such act amenable to punishment, ni. — Constitution of Her Majesty's consular court. I. — The supreme consular court at Constantinople. 10. There shall be a court styled "Her Britannic Majesty's Supreme Consular Court for the Dominions of the Sublime Ottoman Porte." 11. The supreme consular court shall hold its ordinary sittings at Constantinople, but may on emergency sit at any other place within the district of the consulate-general of Constantinople, and may at any time hold its ordinary sittings at any such place within the Ottoman dominions as one of Her Majesty's principal secretaries of state ap- proves. 12. There shall be one judge of the supreme consular court. Her Majesty's consul-general at Constantinople for the time being shall be the judge, but he shall be appointed to the office of judge by Her Maj- esty by special warrant under her royal sign manual. He shall be, at the time of his appointment, a member of the bar of England, Scotland, or Ireland, of not less than seven years' standing, or a subject of Her Majesty (by birth or naturalization) who has filled the office of legal vice-consul in the Ottoman dominions or the office of law secretary to the supreme consular court. He may, in case of his absence from the district of the consulate- gen- eral of Constantinople, either in the discharge of his duty or with per- mission of one of Her Ma,iesty's principal secretaries of state, or in case of illness, appoint, by writing under his hand and seal, a fit person to be his deputy, who shall have all the power and authority of judge During a vacancy in the office of judge, or on emergency, a fit person, ap])roved by one of Her Majesty's principal secretaries of state, may JUDICIAL EXTRATEREITORIAL RIGHTS. 43 temporarily be and act as acting judge, with all the power and author- ity of judge. Notwithstanding anything in this order, Her Majesty may make an appointment to the ofSce of judge at any time after the passing of this order ; but any such appointment shall not take effect before the 1st day of January, I865. 13. There shall be attached to the court — (1.) One law secretary. (2.) So many officers and clerks as one of Her Majesty's principal sec- retaries of state from time to time thinks fit. One of Her Majesty's princijial secretaries of state may, from time to time, temporarily attach to the court such persons holding appointments as consuls or vice-consuls as he thinks fit. 14. The laAv fjecretary shall be appointed by Her Majesty. He shall hold by special commission from Her Majesty the appointment of vice-consul. He shall act as registrar of the court. He shall discharge such duties in connection with the conduct of criminal prosecutions as the judge from time to time directs. He shall hear and determine, in a summary way, such criminal charges as may, under this order, be properly so heard and determined, and as are specially referred to him by the judge. Where a suit or proceeding of a civil nature, originally instituted in the supreme consular court, relates to money, goods, or other property, or anj' civil right or other matter at issue of a less amount or value than £100 sterling, or is instituted for the recovery of damages of a less amount than £100 sterling, the judge may refer such suit or proceeding specially to the law secretary, to be heard and determined by him; but in all such cases an appeal shall lie as of course to the judge. In case of the absence or illness of the law secretary, or during a vacancy in the ofBce of law secretary, or during the temporarj' employ- ment of the law secretary in any other capacity, the judge may, by writ- ing under his hand and seal, appoint any fit person approved by one of Her Majesty's principal secretaries of state to act temporarily as law secretary. The person so appointed shall have all the power and au- thority of law secretary. Every consul or vice consul temporarily attached to the court under Article 13 shall discharge such duties in connection with the court as the judge from time to time, with the approval of one of Her Majesty's principal secretaries of state, directs ; and for that purpose shall have the like power and authority as the law secretary. 2. — The provincial consular courU. 15. In addition to the supreme consular court, each of Her Majesty's consuls- general, consuls, and vice-consuls (holding a commission as such from Her Majesty), resident in the Ottoman dominions ( with such excep- tions as one of Her Majesty's principal secretaries of state at any time thinks fit to make), or any person acting temporarily, with the approval of one of Her Majesty's princii)al secretaries of state, as such a consul- general, consul, or vice-consul, shall, for and in his own consular district, hold and form a court styled " Her Britannic Majesty's consular court at [Smyrna, as the case may he] " hereafter in this order called a provin- cial consular court. IV. — Juries, ass ■ ssors. 16. Every male British subject resident in the Ottoman dominions, being of the age of twenty-one years or upwards, being able to speak 44 JUDICIAL EXTKATERRITORIAL EIGHTS. and read English, having or earning a gross income at the rate of not less than £50 a year, not having been attainted of treason or felony, or convicted of any crime that is infamous (unless he has obtained a free pardon), and not being under outlawrj", shall be qualified to serve on a jury. 17. All persons so qualified shall be liable so to serve, except the fol- lowing: Persons in Her Majesty's diplomatic, consular, or other civil service in actual employment; Officers, clerks, keepers of prisons, messengers, and other persons at- tached to or in the service of any consular court ; Officers and others on full pay in Her Majesty's navy or army, or in actual employment in the service of any department connected there- with; Pefsons holding appointments in the civil service, and commissioned ofScers in the naval or military service of the Sublime Ottoman Porte; Clergymen and ministers in the actual discharge of professional duties ; Advocates and attorneys in actual practice; Physicians, surgeons, and apothecaries in actual practice; and except persons disabled by mental or bodily infirmity. 18. On or before the 14th day of January in every year, each consular court shall make out a list of the persons so qualified and liable, resi- dent within its district. The list shall, on or before the 21st day of the same month, be affixed in some conspicuous place in the court, and shall be there exhibited until the 31st day of that month, with a notice annexed that on a day specified, not being sooner than the 7th or later than the 14th day of the then next mouth, the court will hold a special sitting for the revision of the list. The court shall hold such special sitting accordingly, and at such sit- ting, or at some adjournment thereof (of which public notice shall be given), shall revise the list by striking out the name of any person ap- pearing to be not qualified or not liable to serve, and by inserting the name of any person omitted and appearing to be so qualified and liable, either on the application of the person omitted, or on such notice to him as the court thinks fit to direct. The list shall be finally revised and settled not later than the 21st day of February in every year; and when settled shall be affixed in some conspicuous place in the court, and be there exhibited during not less than two months. Such list, as settled, shall be brought into use in every year on the 1st day of March, and shall be used as the jury list of the court for the months then next ensuing. 19. Where, in pursuance of this order, a jury is required, the court shall summon so many of the persons comprised in the jury list not fewer than 15, as seem requisite. ' Any person failing to attend according to such summons shall be lia- . ble to such fine, of not more than £10 sterling, as the court thinks fit to impose. Any such fine shall not be levied until after the expiration of fourteen days. The proper officer of the court shall forthwith give to the person fined notice in writing of the imposition of the fine, and require him within SIX days after receipt of the notice to file an affidavit excusing his non-attendance (if he desires to do so). The court shall considel the affidavit, and may, if it seems proper, remit the fine. JUDICIAL EXTRATEERITORTAL EIGHTS, 45 20. A jury shall cousist of five jurors. 21. In civil aud in criminal cases the like challenges shall be allowed as in England, with this addition, that iu civil cases each party may chal- lenge three jurors peremptorily. 22. A jury shall be required to give an unanimous verdict. 23. Where there is a jury, all the proceedings at the trial shall be conducted in English ; evidence, if given in any other language, being interpreted in the usual way. 24. Where a provincial consular court (not held before a resident legal vice-consul) proceeds, in pursuance of this^ order, to hear and determine any case, civil or criminal, with assessors, the court shall nominate and summon as assessors not less than two and not more than four indiffer- ent British subjects of good repute, resident in the district of the court. Where, however, by reason of local circumstances, the court is able to obtain the presence of one fit person only as assessor, the court may sit with him alone as assessor, and where for like reasons it is not able to obtain the presence of any tit person as assessor, it may sit without an assessor ; but in every such case the court shall record in the minutes of proceedings its reasons for silting with one assessor only, or without an assessor. 25. An assessor shall not have voice or vote in the decision of the court in any case, civil or criminal, but an assessor dissenting in a civil case from any decision of the court, or in a criminal case from any deci- sion of the court, or the conviction, or the amount of punishment awarded, may record in the minutes of proceedings his dissent and the grounds thereof, and an assessor dissenting shall be entitled to receive gratis a certified copy of the minutes. V. — Jurisdiction and authorities of the consular courts. 1. — In general. 26. All Her Majesty's jurisdiction, civil and criminal, exercisable in the Ottoman dominions shall, for and within the district of the consul- ate-general of Constantinople, be vested exclusively in the supreme consular court as its ordinary original jurisdiction. 27. All Her Majesty's jurisdiction, civil and criminal, exercisable in the Ottoman dominions beyond the district of the consulate-general of Constantinople, and not under this order vested exclusively in the su- preme consular court, shall, to the extent and in the manner provided by this order, be vested in the provincial consular courts, each for and within its own district. 28. The supreme consular court shall have, in all matters civil and criminal, an original jurisdiction concurrent with the jurisdiction of the several provincial consular courts, such concurrent jurisdiction to be exercised subject and according to the other provisions of this order. 29. The judge of the supreme consular court may visit, in a magis- terial or judicial capacity, any provincial consular court, and there in- quire of, or hear and determine, any case, civil or criminal, pending in that court, or arising within its district, or may appoint the law secre- tary of the supreme consular court to visit in the like capacity and for the like purpose any provincial consular court, or may appoint the resi- dent legal vice-consul of any provincial consular court to visit in the like capacity a.nd for the like purpose any provincial consular court where there is not a resident legal vice-consul. 30. A provincial consular court may, of its own motion, or on the ap- 46 JUDICIAL EXTBATERRITOBIAL EIGHTS. plication of any person concerned, report to the supreme consular court the pendency of any case, civil or criminal, which appears to the pro- vincial consular court fit to be heard and determined by the supreme consular court. The supreme consular court shall thereui)ou direct in what mode and where the case shall be heard and determined, and the same shall be so heard and determined accordingly. 31. Every consular court shall, in the exercise of every part of its respective jurisdiction, be a court of record. 32. Each provincial consular court shall execute any writ or order is- suing from the supreme consular court, and take security from any per- son named in any writ or order for his appearance, personally or by at- torney, and in default of such security being given, or when specially ordered by the supreme consular court so to do, send such person to Constantino))le on board one of Her Majesty's vessels of war, or if there is no such vessel available, then on board any British or other fit vessel. The order of the supreme consular court shall be suflBcient authority to the commander or master of such vessel of war or other vessel to re- ceive and detain such person, and carry him to and deliver him up at Constantinople according to the order. 33. The several consular courts shall be auxiliary to one another in all particulars relative to the administration of iustice, civil or criminal. 34. Each provincial consular court shall, every six months, furnish to the supreme consular court a report of every case, civil and criminal, brought before it, in such form as the judge of the supreme consular court from time to time directs. 2. — In civil matters. — Beconciliation and arMtration. 35. Every consular court and its officers shall, as far as there is proper opportunity, promote reconciliation, and encourage and facilitate the settlement in an amicable way, and without recourse to litigation, of matters in difference between persons over whom the court has jurisdic- tion. 36. Every consular court may promote reconciliation, and encourage and facilitate the settlement, in an amicable way, of any suit or proceed- ing pending before it. 37. A consular court may, with the consent of the parties, refer to ar- bitration the Unal determination of any suit or proceeding pending before it, or of all matters in difference between the parties, on such terms and with such directions as to appointment of an arbitrator, and other things as may seem fit, and may, if it thinks lit, take from the parties, or any of them, security to abide by the result of the reference. In any such case the award shall be final and conclusive. On the application of any party, a decree of the court may be entered in conformity with the award, and such decree shall not be open to any appeal or reliearing whatever. 38. Every agreement for reference to arbitration, or submission to arbitration by consent, between or by British subiects, may, on the ap- plication of any party, be made a ruleof the consular court having juris- diction in the matter of the reference or submission, which court shall thereupon have power and authority to enforce the agreement or sub- mission and the award made thereunder, and to control and regulate the proceedings, before and after the award, in such manner and on such terms as may be just. JUDICIAT. EXTRATERRITORIAL RIGHTS. 47 General authority of courts. 39. The supreme and every other consular court shall be a court of law and of equity, and (subject to the other provisions of this order) shall have, and may exercise, all jurisdiction, power, authority, legal, equitable, or other, which any consul of Her Majesty' by custom has, or may exercise, in the Ottoman dominions. Special authorities of courts. 40. The supre]iie and every other consular court shall be a court of bankruptcy, and as such shall, as far as circumstances admit, have, each for and within its own district, with respect to British subjects and to their debtors and creditors, being either British subjects or for- eigners submitting to the jurisdiction of the court, all such jurisdiction as for the time being belongs to the court of bankruptcy and the county courts in England, or to any other judicial authority having for the time being jurisdiction in bankruptcy in England. 41. The supreme consular court shall be a court of vice- admiralty, and as such shall, for and within the Ottoman dominions, and for vessels and persons coming within those dominions, have all such jurisdiction as for the time being ordinarily belongs to courts of vice-admiralty in Her Majesty's possessions abroad. Every provincial consular court held before a resident legal vice-con- sul shall be a court of vice-admiralty, and as such shall, for its own dis- trict, and for vessels and persons coming within that district, have the like jurisdiction. 42. The sui)reme consular court shall, as far as circumstances admit, have in itself exclusively, for and within the dominions of the Sublime Ottoman Porte, with respect to British subjects, all such jurisdiction relative to the custody and management of the persons and estates of persons of unsound mind, as forthe time being belongs to the lord chan- cellor or other person or persons in England intrusted by virtue of Her Majesty's sign manual with the care and commitment of ihe custody of the persons and estates of persons found by inquisition in England idiot, lunatic, or of unsound mind. 43. The supreme consular court shall be a court for matrimonial causes, and as such shall, as far as circumstances admit, have in itself exclu- sively, for and within the Ottoman dominions, with respect to British subjects, all such jurisdiction, except the jurisdiction relative to dissolu- tion or nullity or jactitation of marriage, as for the time being belongs to the court for divorce and matrimonial causes in England. 44. The supreme consular court shall be a court of probate, and as such shall, as far as circumstances admit, have, for and within the Ottoman dominions, with respect to the property of British subjects having at the time of death their fixed places of abode within those dominions, all such jurisdiction as for the time being belongs to Her Majesty's court of probate in England. A provincial consular court shall, however, also have power to grant probate or administration where there is no contention respecting the right to the grant, and it is proved on oath that the deceased had at the time of his death his fixed place of abode within the jurisdiction of the particular court. Probate or administration granted by a provincial consular court shall have effect over all thepropeity of the deceased within the Ottoman dominions, and shall effectually discharge persons dealing with an ex- 48 JUDICIAL EXTRATKREITORIAL EIGHTS. ecutor or administrator thereunder, notwithstanding that any defect afterwards appears in the grant. Such a grant shall not be impeach- able by reason only that the deceased had not at the time of his death his fixed place of abode within the particular jurisdiction. 45. From the death of a British subject, having at the time of death his fixed place of abode within the Ottoman dominions, intestate, until administration granted, his personal property within those dominions shall be vested in the judge of the supreme consular court as the per- sonal jjroperty of an intestate in l'!ngland is vested in the judge of Her Majesty's court of probate there. 46. If any person otherthan one of Her Majesty's consular officers takes possession of and in any manner administers any part of the personal property of any person deceased without obtaining probate or adminis- tration within three months after the death of the deceased,. or within one month after the termination of any suit or dispute respecting pro- bate or administration (if there is any such which is not ended within two months after the death of the deceased), he shall be liable to such penalty not exceeding £100 sterling as the court having jurisdiction in the matter of the property of the deceased thinks fit to impose. Trial with a jury. 47. Where a suit instituted in the supreme consular court, or in a provincialconsnlar court held before aresident legal vice-consul, relates '40 money, goods, or other property, or any civil right or other matter at issue, of the amount or value of £50 sterling or upwards, or is brought for recovery of damages of the amount of £50 sterling or upwards, the siiit shall, on the demand of either party, be tried with a jury. In any case (except where, according to the rules of the court, the suit is to be heard and determined in a summary way), a suit so insti- tuted may be tried with a jury, if the court, of its own motion or on the application of either party, thinks fit so to order. One of Her Majesty's principal secretaries of state may, by order under his hand, extend the present provision to any provincial consu- lar court not held before a resident legal vice-consul where it appears to^iin a sufficient jury list can be obtained. Trial icith assessors. 48. Where a suit instituted in a provincial consular court not held be- fore a resident legal vice consul relates to money, goods, or other prop- erty of a less amount or value than £300 sterling, or does not relate to or involve, directly or indirectly, a question respecting any civil right or other matter at issue of the amount or value of £300 sterling, or up- wards, or is brought for recovery of damages of a less amount than £300 sterling, the couitmay hear and determine the case without assessors. In all other cases the court shall hear and determine the case with assessors. 3. — In criiimial matters. 49. Every consular court shall have authority to cause to be appre- hended and brought before it any British subject being within the dis- trict of the court and charged with having committed a crime or offense within the Ottoman dominions, or on board a British vessel within those dominions, and to deal with the accused according to the jurisdiction of the court and in comformity Avith the provisions of this order; or where JUDICIAL KXTltATEREITORIAL EIGHTS. 49 the crime and offeuse is triable, and is to be tried in Englaiid, to take the preliminary examination, and to commit the accused for trial, and cause or allow him to be taken to England. 50. Where a person charged with a crime or offense escapes or removes from the consular district within which the crime or offense was com- mitted and is found within another consular district, the consular court within the district of which he is found may proceed in the case to ex- amination, trial, and punishment, or in a summary way (as the case may require) in the same manner as if the crime or offense had been committed in its own district; or may, on the requisition or with the consent of the court of the district within which the crime or offense was committed, send him in custody to that court, or require him to give security for his surrender to that court, there to answer the charge and be dealt with according to law. Where any person is to be so sent in custody, a warrant shall be issued by the court within the district of which he is found, and such warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named, and carry him to and deliver him up to the court of the district within which the crime or offense was committed according to the warrant. 51. Where a warrant or order of arrest is issued by a competent authority in Malta for the apprehension of a British subject, a native of Malta or of any of its dependencies, who is accused of having committed a crime or offense within the jurisdiction of the authority issuing the warrant or order, and who is, or. is supposed to be, in the Ottoman dominions, and the warrant or order is produced to a consular court, the court may back the warrant or order, and the same, when so backed, shall be sufficient authority to any person to whom the warrant or order was originally directed, and also to any constable or any other officer of the court by which it is backed, to apprehend the acctised at any place in the Ottoman dominions where the court by which the warrant or order is backed has jurisdiction, and to carry him to and deliver him up at Malta, according to the warrant or order. 52. Where any person is charged with the commission of a crime or offense the cognizance whereof appertains to a consular court in the Ottoman dominions, and it is expedient that the crime or offense be in- quired of, tried, determined, and punished within Her Majesty's domin- ions, the accused may (under the Foreign Jurisdiction Act, section 4) be sent for trial as follows, namely: With respect to native Indian sub- jects of Her Majesty, to Bombay ; and with respect to other British sub- jects, to Malta. The judge of the supreme consular court may, where it appears so expedient, by warrant under his hand and seal and the seal of the su- I)renie consular court, cause the accused to be sent for trial to Bombay or to Malta (as the case may require) accordingly. Such warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named, and carry him to and deliver him up at Bombay or at Malta (as the case may be), according to the warrant. Where any person is to be so sent to Bombay or to Malta, the consu- lar court before which he is charged shall take the preliminary exami- nation, and shall bind over such of the proper witnesses as are British subjects in their own recognizances to appear and give evidence on the trial. 53. A consular court may promote reconciliation, and encourage and facilitate the settlement in an amicable way, of proceedings for assault, S. Mis. 89 4 50 JUDICIAL EXTRATERRITORIAL RIGHTS. or any other offense not amounting to felony and being of a private or personal character, onterois of payment of compensation, or other terms that may seem reasonable or expedient,. and may thereupon order the proceedings to be stayed. 54. All crimes which in England are capital shall be tried by the judge of the supreme consular court, with a jury. Other crimes and offenses above the degree of misdemeairor, tried be- fore the judge or law secretary of the supreme consular court, and not heard and determined in a sutomary way, shall be tried with a jury. Any crime or offense tried before the judge or law secretary of the supreme consular court may be tried with a jury where the judge or law secretary so directs. Subject to the foregoing provisions, such classes of criminal cases within the original jurisdiction (ordinary or concurrent) of the supreme consular court as the judge, having regard to the law and practice ex- isting in England, from time to time directs, shall be heard and deter- mined in a summary way. 55. The supreme consular court may impose the punishment of im- prisonment for any term not exceeding twenty years, with or without hard labor, and with or without a fine not exceeding £500 sterling, or the punishment of a fine alone not exceeding £500 sterling. 56. Where any person is convicted of murder, the proper officer of the court, under the direction of the judge, shall, in open court, require the offender to state if he has anything to say why judgment of death should not be recorded against him. If such offender does not allege anything that would be sufficient iu law to prevent such judgment if the offense had been committed and the trial had been had in England, the court may order such judgment to be entered on record. Thereupon the proper officer shall enter judgment of death on record against such offender, as if judgment of death had been actually pro- nounced on him iu open court by the court. The judge of the supreme consular court shall forthwith send a report of every such judgment, with a copy of the minutes of proceedings and notes of evidence, and any observations he thinks tit to make, to one of Her Majesty's principal secretaries of state, for his direction as to the punishment to be actually imposed, such actual punishment not to ex- ceed the measure of imprisonment and fine mentioned in Article LV. 57. Where a provincial consular court is held before a resident legal vice-consul, crimes and offenses above the degree of misdemeanor tried before the court, and not heard and determined in a summary way, shall be tried with a jury. Any crime or oti'ense may be tried with a jury Avhere the court so directs. Subject to the foregoing provisions, such classes of criminal cases as the judge of the supreme consular court, with the advice and assist- ance of the resident legal vice-consul, having regard to the law and practice existing in England, from time to time directs, shall be heard and determined in a sunmiary way. 58. A provincial consular court held before a resident legal vice-con- sul may impose the punishment of imprisonment for any term not ex- ceeding two years, with or without hard labor, and with or without a fine not exceeding £100 sterling, or the punishment of a fine alone not exceeding £100 sterling. 59. Where the crime or offense with which any person is charged be- fore a provincial consular court not held before a resident legal vice- consul is any crime or offense other than assault endangering life, cut- JUDICIAL EXTEATEEKITOEIAL EIGHTS, 51 ting, maiming, arson, or housebreaking, and appears to the court to be such that, if proved, it would be adequately punished by imprisonment, with or without hard labor, for not more than three months, or by a fine of not more than £25 sterling, the court shall hear and determine the case in a summary way, and without assessors. In other cases the courts shall hear and determine the case on indict- ment, and with assessors. 60. A provincial consular court not held before a resident legal vice- consul may impose the punishment of imprisonment for any term not exceeding twelve months, with or without hard labor, and with or with- out a flue of £50 sterling, or the punishment of a fine alone not exceed-' ing £50 sterling. 61. Where the crime or offense with which any person is charged be- fore a provincijil consular court appears to the court to be such that, if proved, it wou.ld not be adequately punished by such punishment as the court has power to impose, and the accused is not to be sent for trial to England, Bombay, or Malta, the court shall reserve the case to be heard and determined by or under the special authority of the supreme consular court. The provincial consular court shall take the depositions, and forthwith send them, with a minute of other evidence, if any, and a report on the case, to the supreme consular court. The supreme consular court shall direct in what mode and where the case shall be heard and determineil, and the same shall be so heard and determined accordingly. 62. The supreme and every other consular court, in imposing punish- ments, shall have regard, as far as Circumstances admit, and subject to the other provisions of this order, to the punishments imposed by the law of England in like cases. 63. A consular court may order any person convicted before it of any crime or offense to pay all or any part of the expenses of his trial and imprisonment or other punishment. Where it appears to the court that a charge is malicious, or frivolous and vexatious, the court may order all or any part of the expenses of' the prosecution to be paid by the prosecutor. 64. Where the circumstances of the case make it j ust or expedient, the judge of the supreme consular court may report to one of Her Majesty's principal secretaries of state, recommending a mitigation or remission of any punishment awarded by the supreme or any other consular court; and on such recommendation any such punishment may be mitigated or remitted. But no such recommendation shall be made with respect to any pun- ishment awarded by a provincial consular court except on the recom- mendation of that court, or on the dissent of the assessors or assessor, If any, from the conviction or from the amount of punishment awarded. 65. The judge of the supreme consular court may, where it seems ex- pedient, by warrant under his hand and the seal of the supreme con- sular court, cause any offender convicted before any consular court, and sentenced to imprisonment, to be sent to and imprisoned at any such place in the Ottoman dominions as one of Her Majesty's principal sec- retaries of state from time to time approves. Such warrant shall be sufftcient authority to any person to whom it is directed to receive and detain the person therein named, and carry him to and deliver him up at such place, according to the warrant. 66. Where any offender convicted before a consular court in the Otto- man dominions is sentenced to suffer imprisonment in respect of the 52 JUDICIAL EXTRATERRITORIAL RIGHTS. crime or offense of whieh he is convicted, and it is expedient that the sentence be carried into effect within Her Majesty's dominions, the of- fender may (under the Foreign Jurisdiction Act, section 5) be sent for imprisonment as follows, namely : With respect to native Indian subjects of Her Majesty, to Bombay; and with respect to other British subjects, to Malta. The judge of the supreme consular court may, where it appears so expedient, by warrant under his hand and seal and the seal of the supreme consular court, cause such offender to be sent to Bombay or to Malta (as the case may require), in order that the sentence passed upon him may be there canied into effect accordingly. Such warrant shall be sufiQcient authority to any person to whom it is directed to receive and him detain the person therein named, and carry him to and deliver him up at Bombay or at Malta (as the case may be), according to the warrant. 67. The supreme consular court shall, when required by one of Her Majesty's principal secretaries of state, send to the secretary of state a re- port of the sentence passed by the judge or law secretary of the court in any case not heard and determined in a summary way, with a copy of the minutes of proceedings and notes of evidence, and any observa- tions the court thinks fit to make. Every provincial consular court shall forthwith send to the supreme consular court a report of the sentence passed by it in every case not heard and determined in a summary way, with a copy of the minutes of proceedings and notes of evidence, and any observation the court thinks fit to make. The supreme consular court shall, when required by one of Her Majesty's principal secretaries Of state, transmit the same, with any observations the court thinks fit to make, to the secretary of state. VI. — Deportation of offenders. 68. (i.) Where it is shown, on oath, to the satisfaction of a consular court, that there is reasonable ground to apprehend that any British subject in the Ottoman dominions is about to commit a breach of the public peace, or that the acts or conduct of any such British subject are or is likely to produce or excite to a breach of the public peace, the court may cause him to be brought before it, and require him to give security to the satisfaction of the court to keep the peace, or for his future good behavior, as the case may require. (m.) Where any British subject is convicted of any crime or offense before a consular court, or before a court in the sentence of which one of Her Majesty^s consular officers concurs, the consular court for the district in which" he happens to be may require him to give security to the satisfaction of court for his future good behavior. In either of these cases, if the person required to give security fails to do so, the court may order that he be deported from the Ottoman do- minions to such places as the court directs. The court shall not, however, without the consent of the person to be deported, direct the deportation of a native Indian subject of Her Majesty to any place other than Bombay, or of a native of Malta or any of its dependencies to any place other than Malta, or of a native of Gibral- tar to any place other than Gibraltar, or of a native of any part of Her Majesty's dominions other than Malta, its dependencies, or Gibraltar (the person to be deported not being a native Indian subject of Her Majesty) to any place other than England. A provincial consular court shall forthwith report to the supreme con- JUDICIA.L EXTRATERRITORIAL RIGHTS. 53 snlar court auy order of deportation made by it, and the grounds thereof. The supreme consular court may reverse the order, or may confirm it with or without variation, and in case of confirmation shall direct it to be carried into effect. The person to be deported shall be detained in custody until a fit op- portunity for his deportation occurs. He shall, as soon as may be practicable (and in the case of a person • convicted, either after execution of the sentence or while it is in course of execution), be embarked, in custody, under the warrant of the su- preme consular court, on board one of Her Majesty's vessels of war, or if there is no such vessel available, then on board any British or other fit vessel bound to the place of deportation. The warrant of the court shall be suflcient authority to the comman- der or master of such vessel of war or other vessel to receive and detain the person to be deported, and carry him to and deliver him up at the place of deportation, according to the warrant. 69. The supreme or other consular court may order the person to be deported to pay all or any part of the expenses of his deportation. Sub- iect thereto, the expenses of deportation shall be defrayed as the ex- penses relating to distressed British subjects are defrayed, or in such other manner as one of Her Majesty's principal secretaries of state from time to time directs. 70. The supreme consular court shall forthwith report to one of Her Majesty's principal secretaries of state any order of deportation made or confirmed by it, and the grounds thereof, and shall also inform Her Majesty's ambassador, minister, or charg6 d'affaires at the Sublime Ottoman Porte of the same. 71. If any person deported returns to the Ottoman dominions with- out the permission of one of Her Majesty's principal secretaries of state (which permission the secretary of state may give), he shall be liable, on conviction thereof, to punishment (in the discretion of the court be- fore which he is convicted) by imprisonment. for not more than one month, with or without hard labor, and with or without a fine of not more than £10 sterling, or by a fine of not more than £20 sterling alone, and also to be forthwith again deported in manner hereinbefore pro- vided. vn. — Registration op residents and others. 72. Every British subject (except native Indian subjects of Her Maj- esty) resident in the Ottoman dominions, being of the age of twenty- one years or upwards, or being married or a widower or widow, though under that age, shall, in the month of January in every year, register himself or herself in a register to be kei)t at the consulate of the con- sular district within which he or she resides, subject to this qualifica- tion: that the registration of a man shall be deemed to comprise the registration of his wife (unless she is living apart from him), and that the registration of the head of a family, whether male or female, shall be deemed to comprise the registration of all females, being relatives of the head of the family (in whatever degree of relationship), living under the same roof with the head of the family at the time of his or her reg- istration. Every such British subject not so resident arriving at any place within the Ottoman dominions where a consular ottice is maintained, unless borne on the muster-roll of a British vessel there arriving, shall, within one month after his or her arrival, register himself or iiciself in a register to be kept at the consular office, but so that no such person 54 JUDICIAL EXTRA.TERRITORIA.L RIGHTS. shall be required to register bimself or herself more than once in any year, reckoned from any first day of January, Any person failing so to register himself or herself, and not excusing his or her failure to the satisfaction of the consular officer, shall not be entitled to be recognized or protected as a British subject in the Otto- man dominions, and shall be liable to a fine of not more than 40s. for each instance of such failure. 73. Any native Indian subject of Her Majesty resident in or resort- ing to the Ottoman dominions may, if he or she thinks fit, register him- self or herself at the respective times and in the manner aforesaid. Any native Indian subject of Her Majesty not so registering himself or herself shall not be entitled to sue in any of Her Majesty's consular courts in the Ottoman dominions, or to receive the support or protec- tion of any of Her Majesty's consular officers with respect to any suit or proceeding to whicli he or she is a party in a court or before a judi- cial officer of the Sublime Lttoman Porte, or in a court or before a judi- cial officer in the Ottoman dominions of any state in amity with Her Majesty ; nor shall any of Her Majesty's consular officers exercise any jurisdiction for the punishment of any crime or offense committed by any native Indian subject of Her Majesty unless at the date of the commission of the crime or offense he or she was so registered. 74. Every person shall, on everj^ such registration of himself or her- self, pay a fee of 5s. 75. I'he consular officer shall give to every person so registered a cer- tificate of registration under his hand and consular seal; and the name of a wife (unless she is living apart from her husband) shall be indorsed on her husband's certificate; and the names and descriptions of females whose registration is comprised in that of the head of the family shall be indorsed on the certificate of the head of the family. VIII. — Deaths of British subjects non-bbsident. 76. Where a British subject not having at the time of death his fixed place of abode in the Ottoman dominions dies in those dominions, the consular court within whose district he dies shall, where the circum- stances of the case appear to the court so to require, forthwith on the death of the deceased, or as soon after as may be, take possession of his personal iiroperty within the particular jurisdiction, or put it under the seal of the court (in either case, if the nature of the property or .other circumstances so require, making an inventory), and so keep the j)roperty until it can be dealt with according to law. IX. — Offenses against religion. 77. If any British subject is guilty of publicly deriding, mocking, or insulting any religion e.^itablislied or observed within the Ottoman do- minions, or of publicly oft'ering any insult to any religious service, feast, or ceremony established or kept in any part of those dominions, or to any place of worship, tomb, or sanctuary belonging to any such religion, or to the ministers or professors thereof, or of willfully committing any act tending to bring any such religion, or its ceremonies, mode of wor- sliip, or observances, into hatred, ridicule, or contempt, and thereby to provoke a breach of the public peace, he shall be liable (in the discretion of the court) to imprisonment for not more than two years, with or without hard labor, and with or without a fine of not more than £100 sterling, or to a fine of not more tha,n £100 sterling alone. JUDICIAL EXTRATERRITORIAL RIGHTS. 55 Notwithstaudiiig auythiiig iu this order, every charge against a Brit- ish subject of having eouimitted any siicli ottense shall be heard and determined in a summary way, and any provincial consular court shall have power to impose the punishment aforesaid. Her Majesty's consular officers shall take such precautionary measures as seem to them proper and expedient for the prevention of such of- fenses. X. — Foreigners. — Foreign tribunals. 78. Where a foreigner desires to institute or take any suit or proceed- ing of a civil nature against a British subject, or a British subject against a foreigner, the supreme or other consular court, according to its re- spective jurisdiction, shall entertain the same, and shall hear and deter- mine it, either by the judge or proper consular officer sitting alone, or, if all parties desire, or the court thinks lit to direct, a trial with a jury, then by such judge or ofiicer with a jury, but in all other respects ac- cording to the ordinary course of the court ; provided that the foreigner first obtains and files in the court the consent in writing of the compe- tent local autliority on behalf of the Sublime Ottoman Porte, or that of tbe consul of his own nation (as the case may be), to his submitting, and does submit, to the jurisdiction of the court, and, if required, gives secu- rity to the satisfaction of the court, by deposit or otherwise, to pay fees, damages, costs, and expenses, and abide by and perform such decision as may be given by the supreme or other consular court originally or on appeal (as the case may require). 79. Where it is shown to a consular court that the attendance of a British subject to give evidence, or for any other purpose connected with the administration of justice, is required in a court or before a judi- cial officer of the Sublime Ottoman Porte, or iu a court or before a judi- cial officer in the Ottoman dominions of any state in amity with Her Majesty, the consular court may, in cases and under circumstances which would require the attendance of such British subject before one of Her Majesty's consular courts in the Ottoman dominions, and if it seems to the consular court just and expedient so to do, make an order for the attendance of such British subject in such court or before such judicial ofiicer, and for such purpose as aforesaid, but so that a provincial consular court shall not have power to make an order for such attend- ance of a British subject at any jdace beyond the particular jurisdic- tion of the court. Any British subject duly served with such an order, and with rea- sonable notice of the time and place at which his attendance is required, failing to attend accordingly, and not excusing his failure to the satis- faction of the court making the order, shall be liable to a fine of not more than £100 sterling, or to imprisonment for not more than one month, in the discretion of the court. XI. — Appeal to supreme consular court. 1. — In civil cases. 80. Where any decision of a provincial consular court, sitting with or without assessors, is given in a civil case in respect of a sum or matter at issue of the amount or value of £50 sterling or upwards, or deter- mines, directly or indirectly, any claim or question respecting property or any civil right of the amount or value of £50 sterling or upwards, any party aggrieved by the decision may apply to the provincial con- 56 JUDICIAL EXTRATEERITOBIAL EIGHTS. snlar court for leave to appeal to the supreme consular court, and shall be entitled to leave on the terms prescribed by the rules made under this order, and subject to any restrictions and exceptions therein con- tained. In any other case the provincial consular court may, if it seems just and expedient, give leave to appeal on like terms. In any case the supreme consular court may give leave to appeal ou such terms as seem just. 2. — Jw criminal cases. 81. Where any person is convicted otherwise than in a summary way of a crime or offense, the court or consular ofScer before whom he is tried may reserve for the consideration of the supreme consular court any question of law arising on the trial. The court or oflicer shall then state a special case setting out the ques- tion reserved, with the I'acts and circumstances on which it arose, and shall send the case to the supreme consular court. 82. Where any person is convicted in a summary way of a crime or offense, and is dissatisfied with the conviction, as being erroneous in point of law, the court or consular officer before whom he is tried shall, on his application (unless the application appears merely frivolous, in which case the court or officer may refuse the application), statea special case- setting out the facts and the grounds of the conviction, for tlie opinion of the supreme consular court, and send it to that court. 83. Where a special case is stated, the court or consular officer shall, as seems fit, either postpone judgment on the conviction or respite exe- cution of the judgment, and either commit the person convicted to prisnn or take projjer security for him to appear and receive judgment or to render himself in execution (as the case may require) at an appointed time and place. 84. The supreme consular court shall hear and finally determine the matter, and thereupon shall reverse, affirm, or amend any judgment given at the trial, or set aside such judgment and order an entry to be made in the minutes of ijroceedings that in the judgment of the su- preme consular court the person ought not to have been convicted, or arrest the judgment, or order judgment to be given at a subsequent sitting of the court or officer by whom the case is stated, or make such other order as justice requires, and shall also give all necessary and proper consequential directions. 85. The judgment of the supreme consular court shall be delivered in open court, after the public hearing of any argument offered on behalf of the prosecution or of the person convicted. 86. Before delivering judgment the supreme consular court may, if necessary, cause the special case to be amended by the court or consular officer by whom it was stated. XII.— Appeal to Her Majesty in Cocncil. 87. Where any decision of the supreme consular court is given in a civil case in respect of a sum or matter at issue of the amount or value of £500 sterling or upwards, or determines, directly or ind rectly, any claim or question respecting property or any civil right of the amount or value of £500 sterling or upwards, any party aggrieved by the de- cision may, within fifteen days after the same is given, apply by motion JUDICIAL EXTRATERRITORIAL RIGHTS. 57 to the supreme consular court for leave to appeal to Her Majesty in council . If leave to appeal is applied for by a party adjudged to pay money or perform a duty, the supreme consular court shall direct either that the decision appealed from be carried into execution or that the execution thereof be suspended pending the appeal, as the court considers to be in accordance with substantial justice. If the court directs the decision to be carried into execution, the party in whose favor it is given shall, before the execution of it, give security to the satisfaction of the court for the due performance of such order as Her Majesty in council may think fit to make. If the court directs the execution of the decision to be suspended pending an appeal, the party against whom the decision is given shall, before any order for suspension of execution, give security to the satis- faction of the court for the due performance of such order as Her Ma- jesty in council may think fit to make. In all cases security shall also be given bj" the appellant to the satis- faction of the court, to an amount not exceeding £500 sterling, for the prosecution of the appeal, and for payment of all such costs as maj' be awarded to any respondent by Her Majesty in council, or by the lords of the judicial committee of Her Majesty's privy council. If the last-mentioned security is given within one month from the filing of the motion-paper for leave to appeal, then, and not otherwise, the supreme consular court shall give leave to appeal, and the appel- lant shall be at liberty to prefer and i^rosecute his appeal to Her Majesty in council according to the rules for the time being in force respecting appeals to Her Majesty in council from her colonies, or such other rules as Her Majesty in council, from time to time, thinks fit to make concern- ing appeals from the supreme consular court. In any case other than the cases hereinbefore described, the supreme consular court, if it considers it just or expedient to do so, may give leave to appeal on the terms and in the manner aforesaid. 88. This order shall not affect the right of Her Majesty at any time, on the humble petition of a party aggrieved by a decision of the supreme consular court, to admit his appeal thereon on such terms and in such manner as Her Majesty in council mf»y think fit, and to deal with the decision appealed from in such manner as may be just. XIII.— EULES. 89. The judge of the supreme consular court may, notwithstanding anything herein contained, at any time after the passing of this order, and from time to time, frame rules for the effectual execution of this order, and for the observance of the capitulations, articles of peace, and treaties between Her Majesty and the Sublime Ottoman Porte, and for the maintenance of order among British subjects in the Ottoman do- minions, and may thereby impose reasonable penalties; and also rules for the regulation of procedure and pleading, forms of writs and other proceedings, expenses of witnesses and prosecutions, costs, and fees, in civil and criminal cases, in the supreme consular court and other consular courts, and the regulation of appeals to the supreme consular court from the other consular courts. The rules affecting the conduct of civil suits shall be so framed as to secure, as far as may be, that cases shall be decided on their merits, according to substantial justice, without excessive I'egard to technicali- ties of pleading or procedure, and without unnecessary delay. No rules 58 JUDICIAL EXTRATERRITORIAL RIGHTS. shall take effect unless aud uutil approved by one of Her Majesty's principal secretaries of state. The rules made under the order of the 9th day of January, 1863, shall remain in force until rules made under the present order take effect ; and references to the order of the 9th day of January, 1863, in the rules made thereunder, shall be construed as referring to the corresponding provisions of the present order. 90. A copy of the rules for the time being in force shall be exhibited in some conspicuous place in each consular court and consulate in the Ottoman dominions. Printed copies shall be provided and sold at such reasonable price as the judge of the supreme consular court from time to time directs. No penalty shall be enforced in any court for the breach of any rule until the rule has been so exhibited in the court for one month. 91. For the pur|)ose of convicting any person committing a breach of any rule, and for all other purposes of law, a printed copy of the rule, purporting to be certified under the hand of the judge of the supreme consular court and the seal of the court, or under the hand and consular seal of one of Her Majesty's consular oflflcers, shall be taken as conclu- sive evidence of the same, and no proof of the handwriting or seal pur- porting to certify the same shall be required. XIV. — Miscellaneous provisions. 92. In every case, civil or criminal, heard in a consular court, proper minutes of the proceedings shall be drawn up, and shall be signed by the judge or consular officer before whom the proceedings are taken, and sealed with the seal of the court, and shall, where assessors are present, be open for their inspection, and for their signature if concurred in by them. The minutes, with depositions of witnesses and notes of evidence taken at the trial by the judge or consular officer, shall be preserved in the pub- lic office of the court. 93. In a civil case a consular court may order such costs, or costs, charges, and expenses as to the court seem reasonable to be paid by any party to the proceeding or out of any fund to which the proceeding re- lates. 94. A consular court, either of its own motion or, in civil cases, on the application of any party to any suit or proceeding or reference, may summon as a witness any British subject in the Ottoman dominions, but so that a provincial consular court' shall have power so to summon British subjects in its own district only. Any British subject duly served with such a summons, and with rea- sonable notice of the time and place at which his attendance is required, failing to attend accordingly, and not excusing his failure to the satis- faction of the court, shall, over and above any other liability to which he may be subject, be liable to a fine of not more than £100 sterling, or to imprisonment for not more than one month, in the discretion of the couit. 95. In civil cases a consular court may, where the circumstances ap- pear to justify it, order that the expenses of a witness, on his appearing to give evidence, shall be defrayed by the parties, or any of them. 96. Any person appearing before a consular court to give evidence in any case, civil or criminal, may be examined or give evidence on oath in the form or with the ceremony that he declares to be binding on his conscience. JUDICIAL EXTBATEREITORIAL RIGHTS. 59 97. Any British subject willfully giving false evidence iu any suit or proceeding, civil or criminal, or on any reference, shall be deemed guilty of willfnl and corrupt perjury. 98. All costs and all charges and expenses of witnesses, prosecutions, punishments, and deportations, and other charges and expenses, and all fees, fines, forfeitures, and pecuniary penalties payable under this order, may be levied by distress and seizure, and sale of ships, goods, and lands; and no bill of sale, or mortgage, or transfer of property, made with a view to security in regard to crimes or offenses committed, or to be committed, shall be of any avail to defeat, the provisions of this order. 99. AH fees, fines, forfeitures, and pecuniary penalties levied under this order shall be carried to the public account, and be applied in dim- inution of the public expenditure ou account of Her Majesty's consular service in the Ottoman dominions. 100. A ooi)y of this order shall be exhibited in each consular court and consulate in the Ottoman dominions. Printed copies shall be pro- vided and sold at such reasonable price as the judge of the supreme consular court directs. 101. Any suit or proceeding shall not be commenced in a consular court against any person for anything done or omitted under this order, or any rule made under it, unless notice in writing is given by the intending plaintiff or prosecutor to the intended defendant one month at least before the commencement of the suit or proceeding, nor unless it is commenced within three months next after the act or omission complained of, or, in case of a continuation of damage, within three months next after the doing of such damage has ceased. The plaintiff in any such suit shall not succeed if tender of sufficient amends is made by the defendant before the .commencement thereof; and if no tender is made, the defendant may, by leave of the court, at any time pay into court such sum of money as he thinks lit, whereupon such proceeding and order shall be had and made in and by the court as may be had and made on the payment of money into court in an ordinary suit. XV. — Joint jurisdiction. 102. In any case in the decision of which, under the capitulations, articles of peace, and treaties with the Sublime Ottoman Porte, any of Her Majesty's consuls may or ought to concur, the judge of the supreme consular court, or a consular officer exercising jurisdiction under this order, shall exclusively act on the part and on behalf of Her Majesty. And the right honorable the Earl Eussell, and the right honorable Edward Oardwell, and the right honorable Sir Charles Wood, three of Her Majesty's principal secretaries of state, and the lords commission- ers of the admiralty, are to give the necessary directions herein as to them may respectively appertain. ARTHUR HELPS. 60 JUDICIAL EXTRATEERITOEIAL RIGHTS. APPENDIX VI. BRITISH ORDER IN COUNCIL OF OCTOBER 25, 1881. At the court at Balmoral, the 25th day of October, 1881. Present, the Queen's Most Excellent Majesty in Council. Whereas Her Majesty the Queen has power and jurisdiction in rela- tion to Her Majesty's subjects and others in the dominions of the Em- peror of China and the dominions of the Mikado of Japan : Now, therefore, Her Majesty, by virtue and in exercise of the powers in this behalf by the foreign jurisdiction acts, 1843 to 1878, or otherwise, in her vested, is pleased, by and with the advice of her privy council, to order, and it is hereby ordered, as follows: PRELIMINARY, 1. This order may be cited as the China and Japan order in council, 1881. 2. This order shall, except as otherwise expressed, commence to take effect from and immediately after the thirty first day of December, 1881, which time is in this order referred to as the commencement of this order. 3. In this order — " China" means the dominions of the Emperor of China. "Japan" means the dominions of the Mikado of Japan. "Minister" means superior diplomatic representative, whether am- bassador, envoy, minister plenipotentiary, or charg6 d'affaires. " Consular officer " includes every officer in Her Majesty's consular service, whether consul-general, consul, vice-consul, or consular agent, or person authorized to act in any such capacity in China or in Japan. " British subject " means a subject of Her Majesty, whether by birth or by naturalization. "Foreigner" means a subject of the Emperor of China or of the Mikado of Japan, or a subject or citizen of any other state in amity with Her Majesty. "Treaty" includes convention, and any agreement, regulations, rules, articles, tariff, or other instrument annexed to a treaty, or agreed on in pursuance of any stipulation thereof. "Month" means calendar month. Words importing the plural of this singular may be construed as re- ferring to one person or thing, and words importing the masculine as referring to females (as the case may require). KEPEAL. 4. Subject to the provisions of this order. Articles 85 to 91, inclusive, of the China and Japan order in council, 1865, authorizing the making of regulations for the purposes and by the authority therein mentioned, and the regulations made thereunder, dated respectively 11 July, 1866, and 16 November, 1866, relating to mortgages, bills of sale, and pro- ceedings against partnerships or partners or agents thereof, and Bule 252 of the rules of the supreme court and other courts in China and Japan of 4 May, 1865, relating to proceedings against partnerships. JUDICIAL EXTRATERRITORIAL RIGHTS. 61 and Articles 117 and 118 of the China and Japan order in council, 1865, relating to foreigners and foreign tribunals, are hereby repealed, as from the commencement of this order; butthis repeal does not affect any right, title, obligation, or liability acquired or accrued before the com- mencement of this order. OONPIBMATION OF REGULATIONS NOT REPEALED. 5. Such regulations as are described in the schedule of this order, being regulations made or expressed or intended to be made under or in execution of the powers conferred by Articles 85 to 91 of the China and Japan order in council, 1865, and all other regulations made or ex- pressed or intended to be so made and having been approved, or, in case of urgency, not disapproved, under that order, before the com- mencement of this order, except the regulations expressed to be repealed by this order, ai-e hereby confirmed, as from the passing of this order, and the same, as far as they are now in force, shall be in force, and shall be deemed to have always been of the like validity and effect as if they had been originally made by order in council. AtJTHOEITY FOE FURTHER REGULATIONS. 6. Her Majesty's minister in China may from time to time, subject and according to the provisions of this order, make such regulations as to him seem fit for the peace, order, and good goveinment of British subjects resident in or resorting to China. 7. The power aforesaid extends to the making of the regulations for securing observance of the stipulations of treaties between Her Majesty, her heirs and successors, and the Emperor of China, and for maintain- ing friendly relations between British subjects and Chinese subjects and authorities. 8. Her Majesty's minister in China may, as he thinks fit, make any regulations under this order extend either throughout China or to some one or more only of the consular districts in China. 9. Her Majesty's minister in China, in the exercise of the powers afore- said, may, if he thinks fit, join with the ministers of any foreign Powers in amity with Her Majesty in making or adopting regulations with like objects as the regulations described in the. schedule to this order com- monly called the Shanghai Land Regulations, or any other regulations for the municipal government of any foreign concession or settlement in China; and, as regards British subjects, joint regulations so made shall be as valid and binding as if they related to British subjects only. 10. Her Majesty's minister in China may, by any regulation made under this order, repeal or alter any regulation made under the China and Japan order in council, 1865, or under any prior like authority. 11. — {a.) Eegulations made under this order shall not have effect un- less and until they are approved by Her Majesty the Queen, that ap- proval being signified through one of Her Majesty's principal secreta- ries of state — save that, in case of urgency declared in any such regu- lations, the same shall take effect before that approval, and shall con- tinue to have effect unless and until they are disapproved by Her Majesty the Queen, that disapproval being signified through one of Her Majesty's principal secretaries of state, and until notification of that disapproval has been received and published by Her Majesty's minister in China. (b.) That approval, where given, shall be conclusive, and the validity 62 JUDICIAL EXERATERRITORIAL RIGHTS. and regularity of any regulation so approved shall not be called in ques- tion in anj^ legal proceeding whatever. 12. Any regulations made under this order may, if Her Majesty's minister thinks fit, impose penalties for oifenses against the same. 13. Penalties so imposed shall not exceed the following, namely, for any offence imprisonment for three months, with or without hard labor, and with or without a fine of $500, or a fine of $500 without imprison- ment, with or without a further fine, for a continuing offence, of $25 for each day during which the offence continues after the original floe is incurred. 14. Regulations imposing penalties shall be so framed as to allow in every case of part only of the highest penalty being inflicted. 15. All regulations made under this order, whether imposing penal- ties or not, shall be printed, and a printed copy thereof shall be affixed, and be at all times kept exhibited conspicuously' in the public offlce of each consulate in China. 16. Printed copies of the regulations shall be kept on sale at such reasonable price as Her Majesty's minister in China from time to time directs. 17. Where a regulation imposes a penalty, the same shall not be en- forceable in any consular district until a printed copy of the regulation has been affixed in the public office of the consulate for that district, and has been kept exhibited conspicuously there during one month. 18. A charge of an offence against a regulation made under this or- der, imposing a penalty, shall be inquired of, heard, and determined as an ordinary criminal charge under the China and Japan order in coun- cil, 1865, except that (notwithstanding anything in that order) where the regulation is one for securing observance of the stipulations of a treaty, the charge shall be heard and determined in a summary way, and (where the proceeding is before a provincial court) without assess- ors. 19. A printed copy of a regulation, purporting to be made under this order, and to be certified under the hand of Her Majesty's minister in China, or under the hand and consular seal of one of Her Majesty's con- sular officers in China, shall be conclusive evidence of the due making of the regulation, and of its contents. <20. The foregoing provisions authorizing regulations for China are hereby extended to Japan, with the substitution of Japan for China, and of the Mikado of Japan for the Emperor of China, and of Her Maj- esty's minister in Japan for Her Majesty's minister in China, and of Her Majesty's consular officers in Japan for her Majesty's consular offi- cers in China. PRISON REGULATIONS. 21. The respective powers aforesaid extend to the making of regula- tions for the governance, visitation, care, and superintendence of pris- ons in China or in Japan, for the infliction of corporal or other punish- ment on prisoners committing oftenses against the rules or discipline of a prison; but the provisions of this order respecting penalties, and re- specting the printing, affixing, exhibiting, and sale of regulations, and the mode of trial of charges of ofi'ences against regulations, do not ap- ply to regulations respecting prisons and offences of prisoners. .22. A deed or other instrument of mortgage, legal or equitable, of mds or houses, in China or in Japan, executed by a British subject JUDICIAL EXTRATERRITORIAL RIGHTS. 63 may be registered at any time after its execution at the consulate of the consular district wherein the property mortgaged is situate. 23. Registration is made as follows: The original and a copy of the deed or other instrument of mortgage and afiadavit verifying the execu- tion and place of execution thereof, and verifying the copy, are brought into the consulate; and the copy and affidavit are left there. 24. If a deed or other instrument of mortgage is not registered at the consulate aforesaid within the respective time following (namely): (i.) Within fourteen days after its execution, where it is executed in the consular district wherein the property is situate : (ii.) Within two mouths after execution, where it is executed in China or Japan, elsewhere than in that consular district, or in Hong-Kong: (iii.) Within six months after its execution, where it is executed else- where than in China, Japan, or Hongkong: then, and in every such case, the mortgage debt secured by the deed or other instrument and the interest thereon shall not have priority over judgment or simple contract debts contracted before the registration of that deed or other instrument. 25. Registered deeds or other instrumentsof mortgage, legal or equita- ble, of the same lands or houses have, as among themselves, priority in order of registration. 26. — (a.) The provisions of this oider do not apply to a deed or other instrument of mortgage executed before the commencement of this order. (b.) As regards a deed or other instrument of mortgage executed before the commencement of this order, the regulations repealed by this order shall, notwithstanding that repeal, be in force, and shall be deemed to have always been of the like validity and effect as if they had originally been made by order in council. 27. The power conferred on the chief justice of the supreme court for China and Japan by article 127 of the China and Japan order in council, 1865, of framing rules from time to time, is hereby extended to the framing of rules for prescribing and regulating the making and keep- ing of indexes, and of a general index, to the register of mortgages, and searches in those indexes, and other particulars connected with the making, keeping, and using of those registers and indexe-^, and for authorizing and regulating the unregisterlng of any deed or other in- strument of mortgage, or the registering of any release or satisfaction in respect thereof. BILLS OF SALE. 28. The provisions of this order relating to bills of sale — (i.) Apply only to such bills of sale executed by British subjects as are intended to affect chattels in China or in Japau^ (ii.) Do not apply, to bills of sale given by sheriffs or others under or in execution of process authorizing seizure of chattels. 29. — [a.) Every bill of sale must conform with the following rules (namely) : (1.) It must state truly the name, description, and address of the grantor. (2.) It must state truly the consideration for which it is granted. (3.) It must have annexed thereto or written thereunder an inventory of the chattels intended to be comprised therein. (t.) Any defeasance, condition, or declaration of trust affecting the bill not contained in the body of the bill must be written on the same paper as the bill. 64 JUDICIAL EXTRATERRITORIAL RIGHTS. (5.) The execution of the bill must be attested by a credible witness, wilh his address and description. (6.) Otherwise, the bill is void in China and in Japan to the extent following, but not further (that is to say) : (i.) In the case of failure to conform with the rule respecting an inven- tory, as far as regards chattels omitted from the inventory ; and (ii.) In any other case, wholly. (c.) The inventory, and any defeasance, condition, or declaration as aforesaid, respectively, is for all purposes deemed part of the bill. 30. A bill of sale conforming, or appearing to conform, with the fore- going rules, may be registered, if it is intended to affect chattels in China, at the supreme court; and if it is intended to affect chattels in Japan, at the court for Japan ; or in either case at the consulate of the consular district wherein the chattels are ; within the respective time following, and not afterwards, namely : (i.) Within fourteen days after its execution, where it is executed in the consular district wherein the chattels are. (ii.) Within two months after its execution, where it is executed in China or in Japan, elsewhere than in that consular district, or in Hong- Koiig. (iii.) Within six months after its execution, where it is executed else- where than in China, Japan, or Hong-Kong. 31. Eegistration is made as follows : The original and a copy of the bill of sale and an affidavit verifying the execution, and the time and place of execution, and the attestation thereof, and verifying the copy, are brought into the proper office of the court or the consulate, and the copy and affidavit are left there. 32. If a bill of sale is not registered at a place and within the time by this order appointed and allowed for registration thereof, it is, from and after the expiration of that time, void in China or in Japan, accord- ing as that place is in China or in Japan, to the extent following, but not further — that is to say : (i.) As against trustees or assignees of the estate of the grantor, in or under bankruptcy, liquidation, or assignment forbene&t of creditors; and (ii.) As against all sheriffs and others seizing chattels under process of any court, and any person on whose behalf the seizure is made ; but only (iii.) As regards the property in, or right to the possession of such chattels comprised in the bill, as, at or after the filing of the petition for bankruptcy or liquidation, or the execution of the assignment, or the seizure, are in the grantor's possession, or apparent possession. 33. Registered bills of sale affecting the same chattels have, as among themselves, priority in order of registration. 34. Chattels comprised in a registered bill of sale are not in the pos- session, order, or disposition of the grantor with the law of bankruptcy. 35. If in any case there is an unregistered bill of sale, and within or on the expiration of the time by this order allowed for registration thereof, a subsequent bill of sale is granted, affecting the same or some of the same chattels, for the same or part of the same debt, then the- subsequent bill is, to the extent to which it comprises the same chattels and is for the same debt, absolutely void, unless the supreme court for China and Japan, or the court for Japan, as the case may require, is satisfied that the subsequent bill is granted in good faith for the purpose of correcting some material error in the prior bill, and not for the purpose of unlaw- fully evading the operation of this order. JUDICIAL EXTRATERRITORIAL RIGHTS. 65 36. The registration of a bill of sale must be reuewed once, at least, every five years. 37. Eenewal of registration is made as follows : An affidavit stating the date of and parties to the bill of sale, and the date of the original registration, and of the last renewal, and that the bill is still a subsist- ing security, is brought into the proper oflSce of the court or the con- sulate of original registration, and is left there. 38. If the registration of a bill of sale is not so renewed in any period of five years, then on and from the expiration of that period the bill is deemed to be unregistered. .39. The provisions of this order relating to renewal apply to bills of sale registered under the regulations repealed by this order. 40. A transfer or assigumeut of a registered bill of sale need not be registered; and renewal of registration is not necessary by reason only of such a transfer or assignment. 41. Where the time for registration or renewal of registration of a bill of sale expires on a Sunday, or other day on which the ofBce for regis- tration is closed, the registration or renewal is valid if made on the first subsequent day on which the office is open. 42. If in any case the supreme court for China and Japan, or the court for Japan, as the case may require, is satisfied that failure to register or to renew the registration of a bill of sale in due tiine, or any omission or misstatement connected^ with registration or renewal, was accidental or inadvertent, the court may, if it thinks fit, order the failure, omission, or misstatement to be rectified in such manner and on such terms, if any, respecting security, notice by advertisement or otherwise, or any other matter, as the court thinks fit. 43. (a.) The provisions of this order, except as regards renewal of reg- istration, do not apply to a bill of sale executed before the commence- ment of this order. (6.) As regards a bill of sale executed before the commencement of this order, the regulations repealed by this order shall, notwithstanding that repeal, be in force, and shall be deemed to have always been of the like validity and effect as if they had originally been made by order in council. 44. The power conferred on the chief justice of the supreme court for China and Japan by article 127bf the China and Japan order in council, 1865, of framing rules from time to time, is hereby extended to the framing of rules for prescribiog and regulating the making and keeping of indexes, and of a general index, to tLe registers of bills of sale, and searches in those indexes, and other particulars connected with the making, keeping, and using of those registers and indexes, and for au- thorizing and regulating the unregisteriug of any bill of sale, or the reg- istering of any release or satisfaction in respect thereof. SUITS BY OR AGAINST PARTNERS. 45. (a.) The following are rules of procedure of Her Majesty's courts in China and Japan, under the China and Japan order in council, 1865: (1.) Persons claiming or being liable as partners may sue or be sued in the firm-name, if any. (2.) Where, partners sue in the firm-name they must, on demand in writing on behalf of any defendant, forthwith declare the names and addresses of the partners. (3.) Otherwise, all proceedings in the suit may, on application, be stayed on such terms as the court thinks fit. S. Mis. 89 5 66 JUDICIAL EXTEATEERITORIAL EIGHTS. (4.) When the names of the partners are so declared, the suit pro- ceeds in the same manner, and the same consequences in all respects follow, as if they had been named as the plaintiffs in the petition. (5.) All subsequent proceedings nevertheless continue in the firm name. (6 ) Where partners are sued in the iirmname, the petition must be served cither on one or more of the partners within the jurisdiction, or at the principal place of the partnership business within the jurisdiction on some person having then and there control or management of the partnership business. (7.) Where one person carried on business in the name of a firm ap- parently representing more persons than one, is sued in the firm-name, the petition may be served at the principal place of the business within the jurisdiction on some person having then and there control or man- agement of the business. (8.) Where partners are sued in the firm-name, they must. appear in- dividually in their own names. (9.) All subsequent proceedings nevertheless continue in the firm- name. (10.) Where a person, carrying on business in the name of a firm ap- parently representing more persons than one, is sued in the firm-name he must appear in his own name. (11.) All subsequent proceedings nevertheless continue in the firm- name. (12.) In any case not hereinbefore provided for, where persons claim- ing or being liable as partners sue or are sued in the firm-name, any party to the suit may, on application to the court, obtain a statement of the names of the persons who are partners in the firm, to be furnished and verified on oath or otherwise, as the court thinks fit. (13.) Where a judgment is against partners in the firm-name, execu- tion may issue^ (i.) Against any property of the partners as such ; and (ii.) Against any person who has admitted in the suit that he is a partner, or who has been adjudged to be a partner; and (iii.) Against any person who has been served in the suit as a partner, and has failed to appear. (14.) If the party who has obtained judgment claims to be entitled to issue execution against any other person, as being a partner, he may apply to the court for leave so lo do; and the court, if the liability is not disputed, may give such leave, or if it is disputed may order tha<-,'the question of the liability be tried and determined as a question in the suit, in such manner as the court thinks fit. (ft.) The foregoing rules may be from time to time varied by rules of procedure made under the China and Japan order in council, 1865. (c.) Printed copies of the foregoing rules must be exhibited conspicu- ously in eaeh court and consulate in China and Japan, with the other rules of procedure for the time being in force under the China and Japan order m council, 1865, and be sold at such reasonable price as the chief justice of the supreme court from time to time directs. [r!.) A printed copy of the foregoing rules purporting to be certified under the hand of the chief justice of the supreme court and the seal of that court is for all purposes conclusive evidence thereof. 46. (a.) The provisions of this order do not apply to proceedings in- stituted by or against partnership or partners or agents thereof, before the commencement of this order. (6.) As regards proceedings instituted by or against partnerships or JUDICIAL EXTRATERRITORIAL RIGHTS. 67 partners or agents thereof before the commencement of this order, the regulations repealed by this order shall, notwithstanding that repeal, be in force, and shall be deemed to have always been of the like validity and effect as if they had been rules of proceduie made under the China and Japan order in council, 1865 ; and, as regards the same proceedings, the rule of procedure (252) repealed by this order shall continue to have effect, notwithstanding that repeal, subject always to the operation of the regulations repealed by this order. SUITS BY OR AGAINST S'OEEIGNBRS. 47. — (a.) Where a foreigner desires to institute or take a suit or pro- ceeding of a civil nature against a British subject, or a British subject desires to institute or take a suit or proceeding of a civil nature against a foreigner, the supreme court for Japan, and a provincial court, accord- ing to the respective jurisdiction of the court, may entertain the suit or proceeding, and determine it; and, if all parties desire, or the court directs, a trial with a jury or assessors, then, with a jury or assessors, at a place where such a trial might be had if all parties were British subjects, but in all other respects according to the ordinary course of the court : (&.) Provided, that the foreigner first obtains and files in the court the consent in writing of the competent authority of his own nation to his submitting, and that he does submit, to the jurisdiction of the court, and, if required by the court, gives security to the satisfaction of the court, and to such reasonable amount as the court directs, by deposit or otherwise, to pay fees, damages, costs, and expenses, and abide by and perform the decision to be given either by the court or on appeal. (c.) A counterclaim or cross-suit canuot be brought or instituted in the court against a plaintiff, being a foreigner, who has submitted to the jurisdiction, by a defendant, except by leave of the court first ob- tained. («?.) The court, before giving leave, requires proof from the defendant that his claim arises out of the matter in dispute, and that there is rea- sonable ground for it, and that it is not made for vexation or delay. (e.) Nothing in this provision prevents the defendant from instituting or taking in the court against the foreigner, after the termination of the suit or proceeding in which the foreigner is plaintiff, any suit or pro- ceeding that the defendant might have instituted or taken in the court against the foreigner if no provision restraining counter-claims or cross- suits had been inserted in this order. (/.) Where a foreigner obtains in the court an order against a de- fendant, being a British subject, and in another suit that defendant is plaintiff' and the foreigner is defendant, the court may, if it thinks fit, on the application of the British subject, stay the enforcement of the order pending that other suit, and may set off any amount ordered to be paid by one party in one suit against any amount ordered to be paid by the other party in the other suit. (g.) Where a plaintiff, being a foreigner, obtains in the court an order against two or more defendants, being British subjects, jointly, and in another suit one of them is plaintiff, and the foreigner is defendant, the court may, if it thinks fit, on the application of the British subject, stay the enforcement of the order pending that other suit, and may set off' any amount ordered to be paid by one party in one suit against any amount ordered to be paid by the other party in the other suit, without 68 JUDICIAL EXTRATEKRITORIAL RIGHTS. prejudice to the right of the British subject to require contribution from his co-defendants under the joint liability. {h.) Where a foreigner is co-plaintiff in a suit with a British subject who is within the particular jurisdiction, it is not necessary for the for- eigner to make deposit or give security for costs, unless the court so directs ; but the co-plaintifi' British subject is responsible for all fees andcosts. CHINESE, JAPANESE, OR FOREIGN TRIBUNALS. 48. — [a ) Where it is shown to the supreme or other court that the attendance of a British subject to give evidence, or for any other pur- pose connected with the administration of justice, is required in a Chinese or Japanese court, or before a Chinese or Japanese judicial officer, or in a court or before a judicial officer of any state in amity with Her Majesty, the supreme or »ther court may, if it thinks fit, in a case and in circum- stances in which\t would require his attendance before itself, order that he do attend as so required. {b.) A provincial court, however, cannot so order attendance at any place beyond its particular jurisdiction. (e.) If the person ordered to attend, having reasonable notice of the time and place at which he is required to attend, fails to attend accord- ingly, and does not excuse his failure to the satisfaction ot the supreme or other court, he is, independently of auy other liability, guilty of an offence against this order, and for every such offence, on conviction thereof, by summary trial, is liable to a fine not exceeding $500, or to imprisonment for not exceeding one month, in the discretion of the court. And the right honorable the Earl Grauville, one of Her Majesty's principal secretaries of state, is to give the necessary directions herein. C. L. PEEL. [The schedule to which the foregoing order in council refers.] I. Eegulations made by Sir Enthcrfoid Alcock, while Her Majesty's minister in China, intituled or designated as Land Eegulations, Eegu- lations, and By-Laws annexed to the Land Eegulation, for the foreign quarter of Shanghai north of the Yang-kiDg-pang, and commonly called the Shanghai Land Eegulations. II. Port, consular, customs, and harbor regulations applicable to all the treaty ports in China, dated 31st May, 1869. .UIDICIAL EXTRATERRITORIAL RIGHTS. 69 APPENDIX VII. REGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE UNITED STATES IN CHINA. Wnri TABLE OF FEES, AS PRESCRIBED BY THE DECREE OF APRIL 2'J, 1864 ; TO WHICH IS ADDED A SET OP FORMS, AS USED IN THE UNITED STATES CONSULATE-GENERAL; AND THE ACT OF .JULY, 1870. I. — Ordinary oivil proceedings. 1. ffow commenced. — Civil proceedings between American citizens must commence by written petition verified by oath before the consul. 2. Three classes of action. — Ordinary personal civil actions are of three classes, viz: Contract, comprising all cases of contractor debt; wrong, when damages are claimed for a wrong ; replevin, when possession of a specific article is claimed. 3. Demand necessary in contract and replevin. — In contract, the peti- tion must aver that payment, or a performance of the conditions of con- tract, has been demanded and withheld; and, in replevin, that the articles to be replevied have been demanded. 4. Petitioner must deposit money. — The petitioner shall be required to deposit a reasonable sum to defray the probable expenses of court and defendant's costs ; subsequent deposits may be required if found nec- essary. 5. Notice to defendant. — Upou deposit of the money, the consul shall order notice on the petition, in writing, directing defendant to appear before the court at a given day and hour, to file his written answer on oath. 6. Service. — Notice must be served on each defendant at least five days before return day, by delivery of an attested copy of the petition and order, and of any accompanying account or paper. 7. Personal service should always be required when practicable. 8. Default. — On proof of due notice, judgment by default shall be pro- cured against any defendant failing to appear and file his answer as re- quired ; but the default may be taken off for good cause within one day after, exclusive of Sunday. 9. Damages. — But in actions of wrong, and all others where the dam- ages are in their nature unliquidated and indefinite, so that they can- not be calculated with precision from the statement of the petition, the amount of the judgment shall be ascertained by evidence, notwithstand- ing the default. ' 10. Answer.— If defendant appears and answers, the consul, having both parties before him, shall, before proceeding further, encourage a settlement by mutual agreement, or by submission of the case to ref- erees agreed on by the parties, a majjority of whom shall decide it. 11. Amendments. — Parties should, at the trial, be confined as closely as may be to the averments and denials of the statement and answer, which shall not be altered after filing, except by leave granted in open court. 12. American witnesses compelled to attend. — On application of either party and advance of the fees, the consul shall compel the attendance of any witness within his jurisdiction before himself, referees, or com- missioners. 13. Parties are witnesses. — Each party is entitled and maybe required to testify. 70 JUDICIAL EXTEATEERITORIAL RIGHTS. 14. Decrees to be obeyed. — Jadgnieut may be giveu summarily against either party failing to obf-y any order or decree of the consul. 15. Attachment or arrest. — For suflScient cause and on sufQcieut secur- ity the consul, on filing a petition, may grant a process of attachment of any defendant's property to a sufficient amount, or of arrest of any de- fendant not a married woman, nor in the service of the United States under commission from the President. 16. Dissolution of attachment. — Defendant may at any time have the attachment dissolved by depositing such sum, or giving such security as the consul may require. 17. Sale of perishable property. — Perishable property, or such as is liable to serious depreciation under attachment, may, on petition of either party, be sold by the consul's order, and its proceeds deposited in the consulate. 18. Release of debtor. — Any defendant arrested or imprisoned on civil petition shall be released on tender of a sufficient bond, deposit of a sufficient sum, or assignment of sufficient property. 19. Debtor'' s disclosure. — Any person under civil arrest or imprison- ment may have his creditor cited before the consul to hear a disclosure of the prisoner's affairs under oath, and to question thereon; and if the consul shall be satisfied of its truth and thoroughness, and of the honesty of the debtor's conduct towards the creditor, he shall forever discharge him from arrest upon that debt ; provided that the prisoner shall offer to transfer and secure to his creditor the projjerty disclosed, or sufficient to pay the debt at the consul's valuation. 20. Debtorfs board. — The creditor must advance to the jailer his fees and payment for his prisoner's board until the ensuing Monday, and afterwards weekly, or the debtor will be discharged from imprisonment and future arrest. 21. Execution. — On the second day after judginent (exclusive of Sun- day), execution may issue, enforcing the same, with interest at 12 per cent, a year against the property and person of the debtor, returnable in thirty days, and renewable. 22. Seizure and sale of property. — Sufficient property to satisfy the execution and all expenses, may be seized and sold at public auction by the officer, after due notice. 23. Property attached on petition, and not advertised for sale within ten days after final judgment, shall be returned to the defendant. ' 24. Final judgment for defendant.— Y^'h.en final judgment is given in favor of defendant, his peison and property are at once freed from im- prisonment or attachment, and all security given by him discharged. And the consul may, at his discretion, award him compensation for any damage necessarily and directly sustained by reason of such attach- ment, arrest, or imprisonment. 25. Offset.— In actions of contract, defendant may offset petitioner's claim by a counter claim, filing his own claim, uiider oath, with his answer. Petitioner shall be notified to file his answer seasonably, on oath, and the two claims shall then be tried together, and but one judg- ment given for the difference, if any be proved in favor of either party, otherwise for defendant's costs. 26. Cosfs.— Except as hereinafter provided, the party finally prevail- ing recovers costs, to be taxed by him and revised by the consul. 27. Trustee process.— la. contract, the consul may order defendant's property or credits in a third party's hands, to be attached on the peti- tion by serving him with due notice as trustee, provided petitioner secures trustee his costs by adequate special deposit. V . JUDICIAL EXTRATERRITORIAL RIGHTS. 71 28. Trustee's costs.— If adjudged trustee, the third party may retain his costs from the amount for which he is adjudged trustee, if sufficient; otherwise the balance of trustee's costs must be paid out of petitioner's special deposit, as must the whole of his costs if not adjudged trustee. 29. Demand on trustee upon execution. — The amount for which a trustee is charged must be inserted in the execution, and demanded of him by the officer within ten days after judgment, or all claim on him ceases. Process against i)roperty or ijerson of the trustee may issue ten days after demand. 30. Debt must be at least ten dollars. — If petitioner recovers judgment for less than ten dollars, or if less than ten dollars of defendant's prop- erty or credits is proved in the third party's hands, in either case the third party must be discharged with costs against petitioner. 31. Replevin. — Before granting a writ of replevin, the consul shall re- quire petitioner to file a sufficient bond, with two responsible sureties, for double the value of the property to be replevied, one an American citizen ; or petitioner may deposit the required amount. II. — Tender, etc. 32. Before a creditor flies his petition in contract, his debtor may make an absolute and unconditional offer of the amount he considers due, by tendering the money in the sight of the creditor or his legal representative. 33. Deposit. — If not accepted, the debtor shall, at his own risk, and paying the charges, deposit the money with the consul, who shall receipt to him and notify the creditor. 34. Demand or withdrawal. — It shall be paid to the creditor at any time, if demanded, unless previously withdrawn by the depositor. 35. Costs. — If the depositor does not withdraw his deposit, and, upon trial, is not adjudged to have owed petitioner at the time of the tender more than its amount, he shall recover all his costs. 36. Offer to he defaulted. — At any stage of a suit in contractor wrong, defendant may file an offer to be defaulted for a specific sum and the costs up to that time ; and if petitioner chooses to proceed to trial, and does not recover more than the sum offered, and interest, he shall pay all defendant's costs arising after the offer, execution issuing for the balance only. III.— Eepebenoe. 37. When parties agree to a reference they shall immediately iile a rule, and the case be marked " Eeferred " ; a commission shall then issue to the referees, with a copy of all papers filed in the case. 38. Award and acceptance. — The referees shall report their award to the consul, who shall accept the same, and give judgment and issue execu- tion thereon, unless satisfied of fraud, perjury, corruption, or gross er- ror in the proceedings. 39. When transmitted to minister. — In cases involving more than five hundred dollars, if his acceptance is withheld, the consul shall at once transmit the whole case,. with a brief statement of his reasons, and the evidence thereon, to the minister, who shall give judgment on the award, or grant a new trial before the consul. IV. — Appeal. 40. Must be within one day. — Appeals must be claimed before throe o'clock in the afternoon of the day after judgment (excluding Sunday); but in civil cases, only upon suflScient securitj'. 72 JUDICIAL EXTBATEERITORIAL RIGHTS. 41. To he perfected within five days. — WithiD five days after judgment, the appellant must set forth his reasons by petition filed with the consul, which shall be transmitted as soon as may be to the minister, with a copy of docket entries and of all papers in the case. v.— New trial. 42. Because of perjury. — On proof of the peijury of any important wit- ness of the prevailing party upon a material point, affecting the decision of a suit, the consul who tried it may, within a year after final judgment, grant a new trial on such terms as he may deem just. 43. Generally. — Within one year after final judgment in any suit rot involving more than five hundred dollars, the consul who tried it, or his successor, may, upon sufficient security, grant a new trial where justice manifestly requires it; if exceeding $500, with the concurrence of the minister. VI.— Habeascoepus. 44. Slaves not to be held. — No consul shall recognize the claim of any American citizen arising out of a violation of the provisions of the act of Congress approved February 19, 1862, relating to the "coolie trade" so called, nor any claim which involves the holding any person in sla- very. 45. Habeas corpus. — Upon application of any person in writing and under oath, representing that he or any otber person is enslaved, unlaw- fully imprisoned, or deprived of his liberty by any American citizen within the jurisdiction of a consul, such consul may issue hjs writ of habeas corpus, directing such citizen to bring the said person, if in his custody or under his control, before him; and the question shall be de- termined summarily, subject to appeal. VII. — Divorce. 46. Libels for divorce must be signed and sworn to before the consul, and on the trial each party may testify. 47. Attachment. — The consul, for good cause, may order the attach- ment of libeller's property to such an amount and on such terms as he may think proper. 48. Husband to advance money. — He may also, at his discretion, order the husband to advance to his wife, or pay into court, a reasonable sum to enable her to prosecute or defend the libel, with a reasonable monthly allowance for her support, pending the proceedings. • $9. Alimony.— Alimony may be awarded or denied the wife on her divorce, at his discretion. 50. Minor children.— Vastody of the minor children may be decreed to such party as justice and the children's good may require. 51. Release of both — Divorce releases both parties, and they shall not be remarried to each other. 52. Costs.— Vjotiis are at the disci-etion of the consul. VIII. — Maueiage. 53. Record and return.— TisLch consul shall record all marriages sol- emnized by him or in his official presence. IX. — Births and deaths. 54. The birth and death of every American citi/.en witiiin the limits of his ]un8diction shall likewise be recorded. JUDICIAL EXTEATERRITORIAL RIGHTS. 73 X. — Bankkuptct, partnership, probate, etc. 55. Until promulgation of further regulations, consuls will continue to exercise their former lawful jurisdiction and authority in bankruptcy, partnerships, probate of wills, administration of estates, and other mat- ters of equity, admiralty, ecclesiastical and common law, not specially provided for in previous decrees, according to such reasonable rules, not repugnant to the Constitution, treaties, and laws of the United States, as they may find necessary or convenient to adopt. XI. — Seamen. 56. In proceedings or prosecutions instituted by or against American seamen, the consul may, at his discretion, suspend any of these rules in favor of the seamen when, in his opinion, justice, liumanity, and pub- lic policy require it. XII. — Criminal proceedings. 57. How commenced. — Complaints and informations against American citizens should always be signed and sworn to before the consul when the complainant or informant is at or near the consul's port. 58. Bow authenticated. — All complaints and informations not so signed and sworn to by a citizen of the United States, and all complaints and informations in capital cases, must be authenticated by the consul's certificate of his knowledge or belief of the substantial truth of enough of the complaint or information to justify the arrest of the party charged. 59. Copy of accusation. — No citizen shall be arraigned for trial until the offense charged is distinctly made known to him by the consul in respondent's own language. In cases of magnitude, and in all cases when demanded, an attested copy (or translation) of the complaint, in- formation, or statement, authenticated by the consul, shall be furnished him in his own language, as soon as may be, after his arrest. 60. Presence of accuser. — The personal presence of the accuser is in- dispensable throughout the trial. 61. May testify. — He shall be informed of his right to testify, and cau- tioned that if he chooses to offer himself as a witness, he must answer all questions that may be propounded by the consul or his order, like any other witness. 62. American witnesses compelled to attend. — The government and the accused are equally entitled to compulsory process for witnesses within their jurisdiction ; and if the consul believes the accused to be unable to advance the fees, his necessary witnesses shall be summoned at the expense of the United States. 63. Fines and ccsts. — When punishment is by fine, costs may be in- cluded or remitted at the consul's discretion. An alternative sentence of thirty days' imprisonment shall take effect on non-payment of any part of the fine or costs adjudged in any criminal proceeding. 64. Any prisoner, before conviction, may be admitted to bail by the consul who tries him, except in capital cases. 65. Capital cases. — No prisoner, charged with a capital offense, shall be admitted to bail where the proof is evident, or the presumption of his guilt great. 66. After conviction. — After conviction and appeal, the prisoner may be admitted to bail only by the minister. 67. American bail. — Any citizen of the United States offering himself as bail shall sign and swear, before the consul, to a schedule of uueu- 74 JUDICIAL EXTRA.TERRITOEIAL BIGHTS. cumbered personal j)roperty of a value at least double the amount of tlie required bail. 68. Foreign Mil. — Any other proposed bail or security shall sign and swear before the consul to a similar schedule of unencumbered personal property within the local jurisdiction of the consulate, or he may be re- quired to deposit the amount in money or valuables with the consul. 69. Tivo sureties. — Unless such sufiftcient citizen becomes bail, or such deposit is made, at least two sureties shall be required. 70. Surrender. — Any American bail may have leave of the consul to surrender his principal on payment of all costs and expenses. 71. Prosecutor may be required to give security. ^An'^^ complainant, in- formaiit, or prosecutor, may be required to give security for all costs of the prosecution, including those of the accused ; and every complainant, &c., not a citizen of the United States, shall be so required, unless in the consul's opinion justice will be better promoted otherwise; and when such security is refused the prosecution shall abate. 72. Honorable acquittal. — When the innocence of the accused, both in law and in intention, is manifest, the consul shall add to the usual judgment of acquittal the word " honorably." 73. Costs. — In such case judgment may be given and execution issued summarily against any informer, complainant, or prosecutor, for the whole costs of the trial, including those of the accused, or for any part of either or both, if the proceeding appears to have been groundless and vexatious, originating in corrupt, malicious, or vindictive motives. 74. Minor offenses.-^Gousvls will ordinarily encourage the settlement of all prosecutions, not of a heinous character, by the parties aggrieved or concerned. XIII.— Oaths. 75. Oaths shall be administered in some language that the witness understands. 76. Not Christians. — A Avitness not a Christian shall be sworn accord- ing to his religious belief. 77. Atheist. — Au avowed atheist sliall not be sworn, but may af&rm, under the pains and penalties of perjury ; the credibility of his evidence being for the consideration of the consul. 78. Affirmation. — A Christian, conscientiously scrupulous of an oath, may affirm under the pains and penalties of perjury. XIV. — Dockets, records, etc. 79. Civil docket. — Each consul shall keep a regular docket or calen- dar of all civil actions and proceedings, entering each case separatelv, numbering consecutively, to the end of his term of oflBce, with the date of filing, tlie names of the parties in full, their nationality, the nature of the proceeding, the sum or thing claimed, with minutes and dates of all orders, decrees, continuancjes, appeals, and proceedings, until final judgment. 80. Criminal. — He shall keep another regular docket for all criminal cases, with suflicient similar memoranda. 81. Filing papers.— All original papers shall be filed at once and never removed ; no person but an ofdcer of the consulate or the minister should be allowed access to them. All papers in a case mast be kept together in one inclosure, and numbered as in the docket with the par- ties' names, the nature of the proceeding, the year of filing the petition and of final judgment conspicuously marked on the inclosure, and each yt'ar's cases kept by themselves in their order. JUDICIAL EXTRATEREITOEIAL EIGHTS. 75 XY.— Limitation op actions and prosecutions. 82. Criminal. — Heinous offenses, not capital, must be prosecuted within six years ; minor offenses within one. 83. Civil. — Civil actions based on written promise, contract, or instru- ment must be commenced within six years after the cause of action ac- crues ; others within two. 84. Absence; fraudulent concealment. — In iirosecutions for heinous of- fenses, not capital, and in civil cases involving more than $500, any absence of respondent or defendant for more than three months at a time from China shall be added to the limitation ; and in civil cases in- volving more than $100, the period during which the cause of action may be fraudulently concealed by defendant shall likewise be added. XVI. — General provisions. 85. Trials, public. — All trials and proceedings in the United States consular courts in China shall be open and public. 86. Interpreting and translating. — Papers and testimony in a foreign language shall be translated into English by a sworn interpreter ap- pointed by the consul ; in civil cases to be paid by petitioner. Oaths and questions shall be translated by the interpreter from the English for any witness who does not understand English. 87. Testimony. — Parties may be required to file their petitions, an- swers, complaints, informations, and all other papers addressed to the court, in English ; or they may be translated by the interpreter at the consul's discretion. All testimony must be taken in writing in open court, by the consul or his order, and signed by the witness, after being- read over to him for his approval and correction, and it shall form part of the papers in the case. 88. Adjournment. — The consul may adjourn his court from time to time and x)lace to place within his jurisdiction, always commencing pro- ceedings and giving judgment at the consulate. 89. Officer. — All processes not served by the consul personally must be executed by an officer of the consulate, who shall sign his return, specifying the time and mode of service, and annexing an account of his fees. 90. Copies on appeal. — On appeal, copies of all the papers must be paid for in advance by the appellant, except in criminal cases where respondent is unable to pay. 91. Copies. — Any person interested is entitled to a copy of any paper on file, on prepayment of the fee. 92. Eeasonable clearness, precision, and certainty should be required in the papers; and substantial justice and all practicable dispatch is expected in the decisions. 93. Definition of consul. — The word "consul" is intended to include the consul-general, and any vice-consul or deputy-consul actually exer- cising the consular power at any consulate, unless the sense requires a more limited construction. 94. Associates. — Each associate in a consular trial shall, before enter- ing on his duties, be vsworn by the consul. Before taking the oath, he may be challenged by either party, and for sufficient cause excused and another drawn. 95. Contempt. — Consuls will always preserve order in court, punishing summarily any contempt committed in their presence, or any refusal to obey their lawful summons or order, by imprisonment not exceeding twenty-four hours, or by fine not exceeding $50, and costs. 76 JUDICIAL EXTEATERRITORIAL EIGHTS. 96. A ttorney.—Evevj party to a civil or criminal proceeding may be heard in person, or by attorney of liis choice, or by both ; bat the pres- ence of counsel shall be under the exclusive control and discretion of the consul. 97. Accounts.— The accounts of the consular courts shall be kept in United States currency; and every order of deposit, decree of costs, taxation of fees, and, generally, every paper issuing originally from the court, shall be expressed in dollars and cents, and satisfied in United States metallic currency, or its equivalent. XVII.— Fees. 98. In consular court. — In all ca^es where the amount in question is not more than $500 $5 00 In all cases where it is over |500 15 "0 In all cases where no specific damages are sought, the fee shall be |5 for minor, and |15 for greater cases. 99. Cleric's fees. — For issuing all writs, warrants, attachments, or other compulsory process 1 50 For dncketing every suit commenced 1 00 For executions 1 00 ■ For summonses, snbpcenas, and notices -" 50 For all records at the rate of, for each hundred words 20 For drawing every notice, paper, order, or process, not otherwise provided for. 2 00 And if it exoeds 200 words, for every additional hundred words 1 00 For every seal to process issued 1 00 For filing each paper upon the return of the marshal, and all other papers filed in court - 10 100. MarshaVs fees. — For apprehending a deserter and delivering him oh board the vessel deserted from, to be paid by the vessel before leaving port T) 00 For suarching for the same, and if not found, to be certified by the consul, and on his order to be paid by the ship 2 00 For serving any writ, warrant, attachment, or other oompnlsory process, each person 2 00 For serving summons : 1 00 For returning all notices, writs, attachments, warrants, and summonses, each.. 50 For each bail-bond 1 00 For every commitment or discharge of prisoner 2 00 On subpoenas, for each witness summoned 50 For returning snbpcena 25 For each day's attendance upon court 3 00 For levying execution 1 00 For advertising property for sale 3 00 For releasing property under execution, by order of plaintiff 3 00 For selling property under execution, when the amount collected does not excred |l,000 '. 5 per cent. If over |l, 000, and not exceeding $5,000 3 per cent. If over $5,000 2 per cent. For making collections under $200 in cases where no adj udication has taken place 5 per cent. If the amount exceeds $200 2j per cent. For traveling fees in serving all processes, each mile $0 15 For serving every notice not heretofore provided for, in addition to the usual traveling fees 50 101. Interpreter's fees. — For each day's attendance upon court 3 oo For making translations 2 00 If more than 200 words, for each additional hundred " . l 00 102. Witnesses' fees. — For every day's attendance at court i 50 For each mile traveled in going to and returning from court '...'.'.'.'....'... 15 103. Crier's fees. — On trial of every suit j 00 JUDICIAL EX TEA TERRITORIAL RIGHTS. 77 104. Citizen associates^ fees. — For each day's attendance |3 00 105. Costs for prevailing party. — All necessary court fees paid out. XVIII.— Proviso. 106. All decrees heretofore issiied by authority of the commissioners and ministers of the United States to China, which are inconsistent in whole or In part with the provisions of this decree, are hereby annulled, and those portions are henceforth void and of no eflfect ; and the pro- mulgation of these rules abrogates no authority hitherto lawfully exer- cised by consuls in China not inconsistent herewith. FORMS. 1. — Consul's judicial oath. I, A. B., Consul of the United States at , do solemnly swear that I will administer justice without respect to persons, and will, in all things, faithfully and impartially discharge all the duties incumbent upon me as judge of a consular court in China, to the best of my ability. So help me God ! A. B. Before me at , this day of , A. D. 18 — . 2. — Oath to be administered to interpreter, cleric, or marshal. You do solemnly swear that you will faithfully discharge all tlie du- ties incumbent upon you as for the United States consular court at in China, to the best of your ability. So help you God ! 3. — Oath to be administered to associates. You (and each of you) do solemnly swear that you will faithfully hear and duly consider the evidence to be submitted in the matter now be- fore the court, and a fair and impartial opinion give iu the premises, to the best of your ability. So help you God ! 4. — Oath to be administered to witness. You do solemnly swear that the evidence you will give in this case shall be the truth, the whole truth, and nothing but the truth. So help you God ! 5. — Docket (civil cause). In the court of the United States consulate. (Nationality.) A. B. ) vs. } An action of (contract, wrong, or replevin). CD.) Amount (or thing) claimed, dollars. Entered the day of , 18—. Order for answer, the day of , 18—, at — o'clock — m. 78 JUDICIAL EXTRATERRITORIAL RIGHTS. Answer filed, the day of , 18 — , at — o'clock — m. Order for hearing, the day of. , 18—, at — o'clock — m. Heard before , consul, and , associates, the day of -,18- Judgment, . 6. — Docket [criminal cause). In the court of the United States consulate. The United States ^ vs. > A. B. ) Nature of offense, . By whom information laid, . Date when laid, Date of issue of summons or warrant, , . Judgment, . 7. — Petition. In the Court of the United States consulate. Between A. B., petitioner, and 0. D., defendant. To , esquire. Consul and Judge in the Court : The petition of the above named plaintiff humbly sheweth : That he is a citizen (or subject) of , resident at ■ That the defendant is an American citizen, and within the jurisdic- tion of this court. (Here follows a statement of the cause of action, divided into num- bered paragraphs.) Your petitioner therefore prays that judgment may be given against the defendant accordingly, with interest and costs ; and that he may have such other and further relief as to your honorable court may seem meet. And your petitioner will ever pray. A. B. Subscribed and sworn to at ', this day of , A. D. 18 — , before me. [L. S.] _ , United States Consul, acting judicially. 8. — Summons to answer. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and C. D., defendant. To the Marshal of the Court: You are hereby directed to serve a copy of the hereunto attached pe- tition, and of this notice, upon the defendant, G. D., if found within this consular jurisdiction, and notify him to appear in this court on the day of , A. D. 18 — , at o'clock — m. to file his written answer thereto on oath. Given under my hand and the seal of this consulate, at , the day and year first above written. [L. S.] _ , United States Consul, acting judicially. JUDICIAL EXTRATEERITOEIAL RIGHTS. 79 9. — Defendanfs answer. In the court of the United States cousulate, Between A. B., petitioner, and 0. D., defendant. Tlie answer of the defendant in this matter is: (Set forth the defense in numbered paragraphs, referring as maj' be appropriate to the paragraphs of the petition.) The defendant therefore prays that the petition be dismissed, the petitioner decreed to pay the costs, and that he may have such other or further relief as to the court may seem meet. , And defendant will ever pray. C. D. Subscribed and sworn to at , this day of ■ — , A. D. 18—, before me. [L. S-l , United States Consul, acting judicially. 10. — notice of hearing. In the court of the United States consulate, , 18 — . A. B., petitioner, ) vs. > C. D., defendant. ) To the marshal of the court : You are hereby directed to notify that the hearing in the above matter has been set down for the day of , 18 — , at — o'clock — m. The associates chosen are : Messrs. , and . You will obtain from the said the names of the witnesses whom he desires to have summoned on his behalf. And of this notice make due return. [L. S.J United States Consul, acting judicially. 11. — Subpwna for associate. In the court of the United States consulate, , 18 — . A. B., petitioner, ^ vs. > 0. D., defendant. ) To the marshal of the court : You are hereby directed to summon if found within this consular jurisdiction, to be and appear before me, at — o'clock — m., on the day of , 18 — ,. to act as an associate in this case. And of this subpoena make due return. [L. S.] , United States Consul, acting judicially. 80 JUDICIAL EXTEATEERITOEIAL RIGHTS. 12.— Subpcena to witness. In the court of the United States consulate, , 18—. A. B., petitioner, ^ vs. > C. D., defendant. ) To the marshal of the court : You are hereby directed to summon , if found within this consular jurisdiction, to be and appear before me, at — o'clock — m., on the day of , 18 — , to give evidence in this case in behalf of the And of this subpoena make due return. [L. S.] , United States Consul, acting judicially. 13. — Application to foreign court to subpoena foreign witness. In the court of the United States consulate, , 18 — . The United States consul has the honor to request that -— , esq., consul for , at , will be pleased to order A. B., one of its (subjects or citizens) to appear in this court on , the day of 18 — , at — o'clock — m., for the purpose of giving his evidence / in the cause of " C. D. vs. E. F.," in which cause the said A. B. is cited as a witness by the (petitioner or defendant.) [L. S.] ' , United States Consul, acting judicially. 14. — Notice to foreign court of subpcena for American witness to appear in the said court. In the court of the United States consulate, , 18—. The United States consul has the honor to inform , esq., consul for at , that in compliance with his request, he has given the order to subpcena A. B., a citizen of the United States, to appear in the said court, on the day of , 18 — , at — o'clock — m., for the purpose of giving his evidence in the cause " 0. D. vs. E. F.," in which cause the said A. B. is cited as witness by the (petitioner or defendant,) [L. S.] _ , United States Consul, acting judicially. 15. — Officer's return of service. (To be indorsed on petition, notice, summons, subpcena, or warrant.) Served on the within named (state whether the same has been served personally on petitioner or on defendant, as the case may JUDICIAL EXTRATEREITOEIAL EIGHTS. 81 be, or by leaving copy at his place of residence or business, or with his counsel) at — o'clock — m., on the day of , 18 — . Marshal of the Court. 16. — Judgment by default. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and 0. D., defendant. 0. D., a citizen of the United States, having been duly served with (personal or as the case may be) notice of this suit, on the day of , 18 — , as appears by the officer's return thereon, and failing to answer to-day as required, judgment is hereby given in favor of A. B., the petitioner, by default, for dollars and cents, together with dollars and cents, the costs of this action. [L. S.] United States Consul, acting judicially. 17. — Notice of judgment. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and C. D., defendant. To Take notice that judgment will be delivered in this matter on the at — o'clock — m. ClerTc of the Court. 18. — Final judgment after trial. In the court of the United States consulate, , 18^. Between A. B., petitioner, and C. D., defendant. Judgment. Having heard and tried the foregoing action, I adjudge that O. D. pay to A. B. dollars and cents with dollars and cents costs. United States Consul, acting judicially. Assented to : Associates, S. Mis. 89 6 82 JUDICTAL EXTRATERRITOEIAL RIGHTS. 19. — Motion paper. In the court of the United States consulate, 18 — . Between A. B., petitioner, and 0. D., defendant. The petitioner (or defendant) in this matter now moves the court to (here state briefly the substance of the action requested). 20. — Defendants offset statement. In the court of the United States consulate, 18 — . Between A. B., petitioner, and 0. D., defendant. The answer of the defendant in this matter is: (Set forth a general admission of the claim made by the petitioner, or an admission of so much thereof as may be appropriate, in numbered paragraphs if neces- sary.) And for further answer in this matter the defendant says that the plaintiff is indebted to him as follows : (Here set forth the nature of the offset claim in paragraphs, &c.) The defendant therefore prays that judgment may be given (against the petitioner with costs, or that the petitioner's claim may be reduced according to defendant's statement and judgment given accordingly), and that he may have such other or further relief as to the court may seem meet. And your petitioner will ever pray. CD. Subscribed and sworn to at this day of , A. D. 18 — , before me. [L. S.] _ . , United States Consul, acting judicially. 21. — Common execution. In tlije court of the United States consulate. Between A. B., petitioner, and C. D., defendant. To the marshal of the court : Final judgment having been given by this court in favor of A. B. against 0. D. for dollars and cents, dated • 18—, You are hereby directed in the name of the United States to collect the same, amounting to dollars, with interest at 12 per cent, a year from the date of judgment, and dollars more for this execution, be- sides your legalfees; andunlesspaidondemand, you are hereby directed to seize any of hisproperty within the jurisdiction of this court that may be shown to you by A. B., and sell sufScient thereof at public auction, after due notice ; and for want thereof to arrest said debtor's person. JUDICIAL EXTRATERRITOEIAL EIGHTS. 83 and bring him before this court, making return hereon of all your acts, ■within days. Given under my hand and the seal of this consulate, this day of , A. D. 18—. [L. S.] ^ , United States Consul, acting judicially. 22. — Replevin bond. In the court of the United States consulate, 18 — . Between A. B., petitioner, and C. D., defendant. We, A. B., petitioner in replevin, as principal, and Q. and R., citizens of the United States, as sureties, acknowledge ourselves jointly andseverally bound for dollars, to 0. D., a citizen of the United States, defend- ant, to pay all costs of said suit, and for A. B. to return all the prop- erty replevied, in the same condition he received it, whenever such shall be the final judgment, upon immediate full compliance with which by A. B., this bond will be canceled. Witness our hands and seals. A. B., Principal. fL. s. Q., Surety. - L. s. E., Surety. [l. s. 23. — Replevin execution against defendant. In the court of the United States consulate. Between A. B., petitioner, and 0. D., defendant. To the marshal of the court : Final judgment having been given by this court in favor of A. B., against 0. D., defendant in replevin, for possession of the personal prop- erty replevied by him, , 18 — , and for his costs, taxed at dol- lars, dated , 18 — , you are directed to seize any of the property within the jurisdiction of this court that may be shown to you by A. B., and sell sufficient thereof, at public auction, after due notice ; and for want thereof to arrest said debtor's person, and bring him before this court, making return hereon of all your acts, within days. Also to deliver to A. B. the accompanying bond filed by him on , 18 — , and canceled by me. Given under my hand and the seal of this consulate, this dav of , A. D., 18—. [L. S.] United States Consul, acting judicially. 84 JUDICIAL EXTRATERRITORIAL RIGHTS. 24. — Replevin execution against petitioner. In the court of the United States consulate. Between A. B., petitioner, and 0. D., defendant. To the marshal of the court : Final judgment having been given by this court in favor of C. D., against A. B., petitioner in replevin, for a return of all (or a part) of the personal property replevied for him , 18 — , and for his costs taxed at dollars, dated , 18 — , you are required in the name of the TJuited States of America to demand and receive of A. B. the immediate return of said costs and interest at 12 per cent, a year and dollars more for this (and another) execution, besides your legal fees, making return hereon of all your acts, within days. Given under my hand and the seal of this consulate, this day of , A. D. 18—. [L. S.] United States Consul, acting judicially. 25. — Agreement for settlement. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and 0. D., defendant. We, A. B. and C. D., parties to a suit pending before this court, by the advice of the consul, hereby voluntarily settle the case as follows, viz : (Here state the tefms of settlement distinctly.) A. B., Petitioner. G. D., Defendant. Done and acknowledged in mypresence, filed, and thecase dismissed. [L. S.j , United States Consul, acting judicially. 26.— Agreement to refer. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and 0. D., defendant. We, A. B. and 0. D., parties to a suit pending before this court, en- couraged by the consul, voluntarily agree to submit the controversy to the decision of Messrs. E., of , F., of , and G., of , referees agreed on by us, a majority of whom shall decide it. And after suitable notice to both parties, the referees may proceed ex parte. Witness our hands and seals. ;:::^ A. B., Petitioner. CD., Defendant. Agreed to and acknowledged before me, filed, and case marked "re- ferred." [L. S.] _ , United States Consul, acting judicially. JUDICIAL E^J^TRATERRITORIAL RIGHTS. 85 27. — Commission to referees. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and 0. D., defendant. To Messrs. E., of , P., of , and G., of : Gentlemen: Messrs. A. B. and C. D., parties to a suit pending be- fore this court, having agreed to submit it to your decision, you are ap- pointed referees to hear, a majority of you having power to decide the case. After suitable notice to each party of the time and place of meet- ing for trial, you may proceed ex parte, in case either refuses or neglects to appear. You will patiently and impartially hear the parties and their witnesses, taking down all the evidence in writing in open court, carefully reading the testimony to each witness before allowing him to sign the same. You will report your award, sealed, to me, returning this commission with the testimony and all copies and papers, taxing your own fees and the parties' costs. [L.S.] , United States Consul, acting judicially. 28. — Award of referees. In the court of the United States consulate, 18 — . Between A. B., petitioner, and 0. D.. defendant. We, the referees comniissioned to hear and decide the suit of A. B. against 0. D., have the honor to report that we gave each party suita- ble notice of the time and place of our meeting for trial, and (both or either one) appeared (personally or by attorney) and the case was fully and impartially heard on (state each of the days) and (we or a majority of us) this day award judgment in favor of A. B. against 0. D. for dollars and cents, debt (or damages,) and dollars and cents, costs of court to be taxed by the court. And we return our commission, with all the testimony taken down in open court, and signed by each witness after hearing the same read to him, with the copies of petition, answer, and all other papers filed in the case. E, Beferees. 29. — ConsuVs acceptance of award. In the court of the United States consulate, 18 — . Between A. B., petitioner, and C. D., defendant. Eeceived, filed and accepted. Judgment given on the award in favor of A. B., for dollars and cents, debt (or damages) and dollars and cents costs of court, costs of reference included. [L. S.] , United States Consul, acting judicially. 86 Judicial extraterritorial rights. 30. — Consul's transmission of unaccepted award to the minister. In the court of the United States consulate, 18 — . To the honorable , United Slates Minister at Peking, China : Sir : I have the honor to transmit the award of Messrs. E., F., and G., referees agreed on by the parties, and commissioned by me on the 18 — , to hear and decide the suit of A. B. against C. f)., pending before this court, and all the copies, testimony, and papers filed iu the case. I regret that I cannot accept the award, for the following reasons : (State the reasons and the evidence therefor.) I have the honor to be, sir, your obedient servant. United States Consul, acting judicially. 31. — Petition for new trial. In the court of the United States consultate. Between A. B., i)etitioner, and C. D., defendant. To , Consul and Judge in the Court : C. D., defendant in the above-named cause, which was decided in this court on the day of 18 — , represents : (Here set forth the reason for asking for a new trial, in numbered paragraphs.) Wherefore O. D. now petitions the court to grant a new trial of this matter as provided for in the court regulations. And your petitioner will ever pray, C. D. Subscribed and sworn to at , this day of , A. D. 18 — . before me. [L. S.] _ , United States Consul, acting judicially. 32. — Grant of new trial. In the court of the United States consulate, , 18 . Between A. B., petitioner, and C. D., defendant. The foregoing petition of C. D. for a new trial of the suit wherein judg- ment was given against him and in favor of A. B. for dollars and cents and dollars and cents costs, on the , 18 has been considered, and a new trial of the suit is granted and ordered be- fore this court, for the following reasons, and on the following conditions : (Ht-re set forth the reasons and conditions at sufficient length ) United States Consul, acting judicially. 0. D. having performed the foregoing conditions, the day of: 18—, is assigned for a new trial of the suit. [L. S.] .18- United States Consul, acting judicially. JUDICIAL EXTRATERRITORIAL RIGHTS. 87 33. — Application for trustee process. In the court of the United States consulate. A. B. verstts C. D., and E. F., trustee. A. B., petitioner in said suit, represents that E. F., a citizen of the United States, is, as he is satisfied, indebted to 0. U., defendant, or has effects, credits, means or property of defendant, in his hands and pos- session, -which A. B. asks to have attached in E. P.'s hands, and that E. F. may be summoned as C. D.'s trustee, and directed to transfer the same to A. B., for the following reasons: (State the reasons.) A. B. Subscribed and sworn to at , this day of , A. D. 18 — , before me. [L.S.] United States Consul, acting judicially. 34. — Order of notice to trustee. In the court of the United States consulate, , 18 — . A. B. versus C. D., and E. F., trustee. To the marshal of the court : Notify E. P. to appear before me on the day of , 18—, at — o'clock in the noon, to file, on oatli, his reasous why he should not be adjudged trustee of G. D., by serving him personally with an attested copy of A. B.'s application and of this order at least five days before- hand, making return of your service hereon. [L.S.] _ , United States Consul, acting judicially. 35. — Trustee execution. In the court of the United States consulate. A. B. versus 0. D., and E. P., trustee. To the marshal of the court : Pinal judgment having been given by this court in favor of A. B, against O. D., as principal defendant, for dollars and cents debt (or damages), and dollars and cents costs, and against E. P., as trustee of C. D., for dollars and cetits, dated the , 18 — , you are directed, in the name of the United States of America, to col- lect the same, amounting to $ , with interest at 12 per cent, a year from sa^d date of judgment, besides your legal fees ; and unless paid by C. D., on demand, to demand the same (or the amount for which he is adjudged trustee less his costs taxed at $ -) of E. P., within ten days after said date of judgment, and if still unpaid, you are directed to seize any of the principal defendant's property within the jurisdiction of this court that may be shown you by A. B., and sell sufficient thereof at auction after due notice, and for want thereof to arrest his person 88 JUDICIAL EXTRATERRITOEIAL RIGHTS. and bring him before this court, or after ten days subsequent to your demand on said trustee, to proceed in the same manner against his property and person, making due return of your service hereon. Given under my hand and the seal of this consulate, this day of ,18-. [L. S.] , United States Consul, acting judicially. 36. — Petition for habeas corpus. In the court of the United States consulate. A. B. versus C. D. To the United States consular court : A. B. represents that he (or E. F.) is unlawfully deprived of his liberty by 0. D., a citizen of the United States, and within the jurisdiction of this court, and solicits relief. A. B. Subscribed and sworn to at this day of , A. D. 18 — , before me. [L. S.] , United States Consul, acting judicially. 37. — Writ of habeas corpus. In the court of the United States consulate, , 18 — . A. B. versus G. D. To the marshal of the court : Notify 0. D., a citizen of the United States, to appear before me forthwith and to bring with him A. B., if he has him in his custody or under his control, by serving 0. D. (personally) with an attested copy of the petition and of this order, making due return of your service hereon. [L.S.] , United States Consul, acting judicially. 38. — Execution in habeas corpus. In the court of the United States consulate, , 18 — . A. B. versus C. D. To the marshal of the court: Final judgment having been given by this court in favor of A. B., petitioner in habeas corpus, against C. D., for unlawfully depriving him of his liberty within this consular district, and for his costs, taxed at dollars and cents, dated , 18—, you are required, in the name of the United States of America, forthwith to set A. B. at liberty, and to collect the costs from C. D. fL. S.] United States Consul, acting judicially. JUDICIAL EXTRATKERITOEIAL EIGHTS. 89 39. — Decree for husband to advance money on libel for divorce. In the court of the United States consulate, , 18—. L. versus L., in divorce. Ordered that L. pay into court within days dollars to en able his wife to prosecute her (or defend his) libel for divorce pending before me. Also that he advance or secure to her dollars, monthly, for her support, payable on the first day of each month during the pend- ency of the libel, or until further order. [L.S.] _ , United States Consul, acting judicially. 40, — Certificate of divorce. In the court of the United States consulate. L. versus L., in divorce. Upon the libel of Mr. (or Mrs. L.), filed on the day of , 18 — , against Mrs. (or Mr. L.), a full divorce was decreed by this court for (state the cause) and the bond of matrimony dissolved by decree entered on the — 18 — . Given under my hand and the seal of this consulate, this day of -, A. D. 18—. [L. S.] United States Consul, acting judicially. 4:l,-^Application for attachment of defendants property or arrest of his person. In the court of the United States consulate. A. B. versus 0. D. To the United States consular court : A. B., petitioner, solicits the attachment of dollars and cents of the property (or the arrest of the person) of C. D., defendant, in a suit commenced to-day before this court, for the following reasons (state the reasons and the evidence). A. B, Subscribed and sworn to at this day of , A. D. 18^, before me. [L. S.] , United States Consul, acting judicially. 90 JUDICIAL EXTEATERRITOEIAL BIGHTS. 42. — Bond of applicant for attachment or arrest. In the court of the United States consulate, , 18 — . Between A. B., petitioner, and C. D., defendant. We, A. B., petitioner, as principal, and Q. and E., of , citizens of the United States, as sureties, acknowledge ourselves jointly and sev- erally bound for dollars to 0. D., defendant, to pay all loss or dam- age that may be adjudged by the court to have been occasioned to C. D., defendant, by attachment of his property (or by arrest of his person) on application of A. B. to-day. Witness our hands and seals. A. B., Principal, [l. s. Q., Surety. L. s. E., Surety. [l. s. 43, — Attachment. In the court of the United States consulate, , 18 — . A. B. versus 0. D. I hereby notify all concerned that in virtue of the judicial authority in me vested as United States consul, I do by this writ, issuing out of the United States consular court, attach all the property, real, personal, and mixed, of the defendant (or so much as may be necessary, same to be named if possible), to be held subject to the further order of this court in the matter of a suit now pending before me in which A. B. is petitioner. fL. S.] _ , United States Consul, acting judicially. 44. — Application for sale of attached property. In the court of the United States consulate. A. B. versus 0. D. To the United States consular court : A. B., petitioner (or 0. D. defendant) in said suit pending before this court requests that the following personal property, attached in said suit on the , 18—, and now held by the oflcer, being perisha- ble (or liable to serious depreciation under attachment), may be sold, to wit (annex a schedule). A. B. Subscribed and sworn to at this day of A. D. . 18 — , before me. ' [L. S.] United States Consul, acting judicially. JUDICIAL EXTRATERRITORIAL RIGHTS. 91 45. — GonsuVs order of sale. In tlie court of the United States consulate, , 18 — . A. B. versus C. D. To the marshal of t1ie court : In the name of the United States, sell at public auction, for cash, the property above named, giving public notice thereof, and serving the parties seasonably with an attested copy of the application and of this order, making due return to the court. [L. S.] _ , United States Consul, acting judicially. 46. — Public notice of sale. A. B. versus G. D. By order of the United States consular court, dated , 18 — , I shall sell at public auction, for cash, to the highest bidder, on the day of , 18 — , at — o'clock in the noon, at , the following personal property of C. D., attached (or seized) by me on the petition (or execution in favor) of A. B. -, 18-. United States Marshal. 47. — Order of dissolution of attachment. In the court of the United States consulate, , 18 — . A. B. versus C. D. To the marshal of the court : The attachment on the property of 0. D., defendant in said suit, is dissolved. [L. S.] , United States Consul, acting judicially. 48. — Process of civil arrest. In the court of the United States consulate, , 18 — . A. B. versus 0. D. To the marshal of the court : In the name of the United States, arrest the person of 0. D., defen dant in said suit, and bring him before this court to show cause why he should not be committed to jail on petition of A. B., filed to-day. [L. S.] , United States Consul, acting judicially. 92 JUDICIAL EXTRATERRITORIAL RIGHTS. 49. — Process of commitment on civil arrest. In the court of the United States consulate, , 18 — . A. B. versus C. D. To the Marshal of the Court : In the name of the United States, commit forthwith to jail C. D., de- fendant in said suit pending before this courb, on petition of A. B., and there let him be safely kept unless discharged by said A. B., or until further order. [L. S.] , United States Consul, acting judiciaUy. 50. — Bail hond of defendant arrested on petition. In the court of the United States consulate, , 18 — . Be'tween A. B., petitioner, and C. D., defendant. We, 0. D., defendant, as i^rincipal, and Q. and E., of , citizens of the United States, as sureties, acknowledge ourselves jointly and severally bound for dollars to A. B., petitioner, that C. D., defend- ant, principal, shall, within ten days after final judgment against him in said suit, pay the amount thereof, and all legal charges, or surrender himself into the custody of the court. Witness our hands and seals. 0. D., Principal, [l. s.] Q., Surety. [L. s.] R., Surety. [l. s.] 51. — Application of defendant for citation of petitioner. In the court of the United States consulate. A. B. versus 0. D. To the United States Consular Court: I, 0. D., defendant in said suit pending before this court, arrested on petition of A. B. (or debtor of A. B., by judgment of this court, dated , 18 — , and now under arrest, or committed to jail thereon by order of this court), desire to cite A. B. before this court on the day of , 18 — , at — o'clock in the noon at the consulate, to hear my disclosure of my affairs ou oath, and to question me thereon if he thinks proi^er. , 18-. CD. 52. — Consul's notice to petitioner. In the court of the United States consulate, , 18—. To the Marshal. of the Court: Notify A. B., petitioner, that the foregoing prayer of C. D. is granted, and tliat he, A. B., is cited to appear at the time and place, and for the JUDICIAL EXTRATERRITORIAL RIGHTS. 93 purpose named, by serving him personally with an attested copy of the petition and of this order at least five days beforehand, making due re- turn of your service. [L. S.] . , United States Consul, acting judicially. 53. — Oath, schedule, and assignment of defendant or debtor. In the court of the United States- consulate. A. B. versus 0. D. I, C. D., defendant in said suit pending before this court (or judgment debtor of A. B.), and under arrest (or imprisonment) by said A. B., on petition dated , 18 — (or on execution from this court, dated , 18 — , issued on a judgment of , 18 — , for dollars and cents debt, and dollars and cents costs), solemnly swear that the following is a correct schedule of all the property which I own, or in which I have any interest, and I am ready to assign it, or such part as the court may order, to said A. B., petitioner, towards payment, to take effect whenever he shall recover judgment against me" (or to said A. B., my judgment creditor, towards payment of my debt). Schedule. C. D. Subscribed and sworn to at this day of , A. D. 18 — , before me. [L. S.] . , United States Consul, acting judicially. ASSIGNMENT. I hereby assign to A. B. all my interest in all the property described in the foregoing schedule for dollars, being the valuation of court, to take effect whenever he shall recover judgment against me(ortosaid A. B., my judgment creditor, and towards payment of my debt). (If a part of the property only is to be assigned, say, after specifying it, &c., in payment of my debt according to the valuation of court). Witness my hand and seal. CD. Subscribed and sworn to at this day of , A. D. 18 — , before me. United States Consul, acting judicially. Accepted. , 18-. A. B. 54. — Consul's certificate to defendant or debtor of discharge on disclosure, or on security. In the court of the United States Consulate, , 18 — . A. B. versus 0. D. To C. D.: SiE : Having made a satisfactory disclosure of your affairs (or having given sufQcient security to A. B., petitioner) before this court to-day, 94 JUDICIAL EXTRATERRITORIAL RIGHTS. you are hereby forever discharged from arrest or imprisonment by rea son of (describe the judgment and execution or petition). [L. S.] , United States Consul, acting judicially. 55. — GonsuVs order of release. In the court of the United States consulate , 18 — . A. B. versus C. D. To the Marshal of the Court : In the name of the United States, forthwith release C. D., now in your custody on petition (or judgment in favor) of A. B. [L. S.] , United States Consul, acting judicially. 50. — Appellant^s petition to minister. In the court of the United States consulate. Between A. B. or C. D., appellant, and G. D. or A. B., defendant. To the honorable , United States minister at Pehing, China : A. B., a citizen of the United States, appeals from the judgment ot the United States consular court at , given on the of , 18 — , against him and in favor of C. D., for (state the judgment) for the following reasons. (Here set forth the reasons in numbered paragraphs.) , 18—. A. B. 57. — Consul's transmission of appeal. In the court of the United States consulate , 18 — . Sir: a. B., appellant,, having seasonably filed his appeal with suffi- cient security, I have allowed it, and now have the honor to transmit his petition, with copies of all the papers. [L. S.] To the honorable United States Consul, acting judicially. United States minister at Pelcing, China. 58. — Appellant's petition of appeal to circuit court. In the court of the United States consulate. Between A. B. or C. D., appellant, and 0. D. or A. B., defendant. A. B. hereby appeals to the circuit court of the United States for the district of Cahfornia, from the final judgment rendered by the United JUDICIAL EXTEATEREITORTAL KIGHTS. 95 States consular court at , on the of , 18 — , in a case in which A. B. was petitioner and C. D. was defendant (or as the case may be), and the said A. B. praj's the said circuit court to re-examine the said judgment and all the proceedings in the case, and to reverse the said judgment and to render judgment in favor of A. B., with costs. And the said A. B. hereby specifies the following, among others, as errors in the said judgment : . And the said A. B. prays leave to specify other errors hereafter. And your petitioner will ever pray. Dated at the day of , A. D. 18—. A. B. . 59. — Petition for allowance of appeal. In the court of the United States consulate. Between A. B. or 0. D., appellant, and C. D. or A. B., defendant. To — , esq., Consul and judge in the court: A. B. hereby petitions this court to receive the attached petition of appeal from the final judgment given in this case on the of , 18 — , and to allow the appeal, and to cite the defendant to appear in the circuit court of the United States for the district of California on (date stated), to answer to the appeal. Dated at the day of , A. D. 18 — . A. B. 60. — Order allowing appeal to circuit court. In the court of the United States consulate, , 18 — . Between A. B., appellant, and 0. D., defendant. Upon reading and filing the petition of A. B. to be allowed to appeal to the circuit court of the United States for the district of California, &c., it is ordered : That the said appeal be and is hereby allowed. A bond conditioned in the sum of dollars will be required from the appellant. Upon the approval of this bond, a citation will be served upon the defend- ant in appeal, citing him to appear in the said circuit court on (date stated). [L. S.] , United States Consul, acting judicially. 61. — Citation on appeal to circuit court. In the court of the United States consulate, , 18 — . Between A. B., appellant, and G. D., defendant. To the marshal of the court : You are hereby directed to serve a copy of the attached petition of appeal upon C. D., the defendant in appeal in this matter, and to cite 96 JUDICIAL EXTRATEERITOEIAL BIGHTS. him to appear in the circuit court of the United States for the district - of California, ou (date mentioned), to answer to the said appeal. [L. S.] , United States Consul, acting judicially. 62. — Criminal complaint. In the court of the United States consulate. The United States of Ameeica i versus > A. B. ) To the United States consular court : O. D. on oath complains that A. B., a citizen of the United States, and within the jurisdiction of the court at , on — , 18 — , unlaw- fully (here state the offense with sufftcient fullness of detail). C. D. Subscribed and sworn to at this day of , A. D. 18 — , before me. [L.S.] , United States Consul, acting judicially. 63. — Warrant to apprehend accused. In the court of the United States consulate. The United States of Ameeica ^ versus > A. B. ) To the marshal of the court : In the name of the United States of America, forthwith apprehend A. B., a citizen of the United States, and bring him before me to answer the complaint of C. D., charging him with the offense of , at , on the , 18 — , for which this shall be your sufflcieut warrant. Given under my hand and the seal of this consulate this day of , 18—. [L. S.] United States Consul, acting judicially. 64. — Warrant without complaint or information. In the court of the United States consulate. The United States op Ameeica versus A. B. To the marshal of the court : Upon facts within my own knowledge, or which I have reason to believe true, you are directed, in the name of the United States of JUDICIAL EVTKATERRITORIAL EIGHTS. 97 America, forthwith to apprehend A. B., a citizen of the United States of America, and bring him before me to answer to a charge of , at , 18 — , for which this shall be your sufiQcient warrant. Griven under my hand and the seal of this consulate this day of -, 18-. [L. s.] J United States Consul, acting judicially. 65. — Bail bond in criminal ca^e. In the court of the United States consulate. The United States of America versus A. B. We, A. B., a citizen of the United States, as principal, and E. F. and G. H., citizens of the United States, as sureties, acknowledge our- selves jointly and severally responsible for the immediate personal ap- pearance of A. B. before this court, whenever called for, and to pay to the court dollars and cents, on demand, for the use of the United States of America, whenever the court shall adjudge that said A. B. has failed to appear and answer to a criminal prosecution for , pending against him before said court on the complaint of G. D., or to abide and fulfil any decree, order or jugment of the court relative thereto. Witness our hands and seals at , on the day of , 18—. A. B., Principal. [l. S. C. D., Surety. [L. s. E. F., Surety. [l. s. 66. — Schedule of baiVs property. In the court of the United States consulate. The United States op America ^ versus > A. B. ) To the United States consular court: I, E. F., who offer myself as bail for A. B., a prisoner charged with the offense of before said court, solemnly swear that I am the sole and unconditional owner and possessor of all the unencumbered personal property named in the following schedule, worth at least dollars. (Here write in a list of the property.) E. F. Subscribed and sworn to before me at this day of A. D, 18—. [L. g.] 7 United States Consul, acting judicially. S. Mis. 89- 98 JUDICIAL EXTE4TERRIT0EIAL EIGHTS. 67. — Surrender of prisoner hy bail. In the court of the United States consulate. The United States of Amekica ) versus A. B. s To the United States consular court : E. P. asks leave to surrender A. B., charged with the offense of ' before said court, whose bail he became on the day of , A. D. E. E. Filed, petition granted, and prisoner committed. [l. s.] ) United States Consul, acting judicially. 68. — Execution for costs against informant. In the court of the United States consulate, , 18 — . The United States of America ^ versus > A. B. ) To the marshal of the court : 0. D. having filed a complaint (or information) under oath in this court, on the day of , 18 — , against A. B., a citizen of the United States, charging him with the offense of , and A. B. having been tried and honorably acquitted by me, and the complaint (or infor- mation) of C. D. being in my opinion groundless and vexatious, originat- ing in corrupt or vindictive motives, I have awarded judgment against 0. D. in favor of A. B. for dollars and cents costs, dated , 18 — . You are therefore directed to demand the same from C. D., and if unpaid after (three) days to seize any of his property within the jurisdiction of the court, and sell sutiScientthereof at public auction, after due notice ; and for want thereof to arrest the debtor's person, and bring him before this court, making due return thereon. Given under my hand and the seal of the consulate. [L. S.] , United States Consul, acting judicially. 69. — Certificate of drawing names of associates in criminal case. In the court of the United States consulate, , 18 — . We, the undersigned, do hereby certify that in the case of the United States versus , we, by order of the consul, drew lots for associates, and that the first lot fell upon (who is absent from this port, or is dead) ; thesecond lot fell upon ; and the third upon ^. Cleric of the Court. United States Marshal. JUDICIAL EXTEATEEEITORIAL EIGHTS. 99 70. — Judgment in criminal case. In the court of the United States consulate, , 18 — . The United States of America ^ versus } A, B. ) Having heard and tried the foregoing complaint (or information), filed by 0. D. on the day of , 18—, I find A. B. guilty of the of- fense of , wherewith he was charged, having at on , 18 — , unlawfully (state the substance of the offense proved), and I ad- judge and sentence him therefor to imprisonment for from this day, in the prison for American convicts at . [L. S.| Assented to: United States Consul, acting judicially. Associates. 71. — Warrant of commitment. In the court of the United States consulate, , 18 — . To the marshal of the court: You will commit to jail for confinement, for years, months, days, or until further command, the body of — , and of this writ make due return. The charge against the prisoner is , and he is committed (for examination, for trial, under judgment, or as the case may be). [L. S.] , United States Consul, acting judicially. 72. — Marshal's return, to be made on the above warrant of commitment. I have committed the person named, and the following is his true description : Description: — Age, ; Height, ; Face, ; Forehead, -; Eyes, ; Nose, ; Chin, ; Build, ; Marks, United States Marshal. 73.— Proof of will. In the court of the United States consulate. Before me, the undersigned, consul of the United States at ■ has personally appeared A. B., who acknowledged to me that C. D., the testator, signed, sealed, and delivered the foregoing will, dated the day of , 18 — , in his presence and in the presence of B. P. and G. H., whose names are subscribed as witnesses thereto, and that 100 JUDICIAL EXTRATERRITORIAL RIGHTS. tlie testator at tlie same time declared it to be iais last will and testa- ment. Subscribed and sworn to at this day of , A. D. 18 — , before me. [L. S.] ^ , United States Consul, acting judicially. 74. — Ord&r admitting will to probate. In the court of the United States consulate, , 18 — . In the matter of the last will and testament of A. B. On reading and filing the last will and testament of A. B., deceased; the proofs that he was a citizen of the United States; that he died at on the day of , 18 — ; and that he executed the said last will and testament; and no other last will and testament having come to the knowledge of the court, it is ordered : That the said will be, and is hereby admitted to probate. [L. S.] * , United States Consul, acting judicially. 76. — Order upon filing executory inventory of estate. In the court of the United States consulate, , 18 — . In the matter of the last will and testament of A. B., 0. D. and E. P., the executors named in said will having signified their readiness to accept the trust contained in said will, and having produced to me an inventory and appraisal of the estate real and personal, and having sworn that the said inventory and appraisal are complete and just to the best of their knowledge and belief, I now order that the said persons be and are hereby confirmed in the Said trust, and that a copy of this order be given to them upon their filing a bond, with two sureties, in double the amount of the value of the estate, such bond to be approved by the court. [L. S.] ; United States Consul, acting judicially. 76. — Appointment of administrator. In the court of the United States consulate, 18 — . In the matter of the estate of A. B., deceased. It appearing that said deceased was a citizen of the United States; that he died at , on the day of , 18 — , and has left property to the value of dollars, more or less, within this consular district; and no will having been brought to the notice of the court; and C. D. having applied to be appointed administrator, and having filed a bond for the faithful performance of his trust, as such adminis- trator, which bond has been approved, I now order that the said 0. D. be, and is hereby, appointed administrator of the estate of said deceased, JUDICIAL EXTIUTERRITORIAL EIGHTS. 101 and that the said administrator file a full statement of the assets and liabilities of the estate, with an appraisal of the property, real and per- sonal, within thirty days from this date. [L. S.] , United States Consul, acting judicially. 77. — Attest of copy. In the court of the United States consulate, , 18 — . I, the undersigned, consul of the United States at , China, do hereby certify that I have compared the above and foregoing copy with the original document on file in this ofQce (or exhibited to me this day), and that it is a true and correct transcript of the same. In witness whereof I have hereunto set my hand and the seal of the consulate. [L. S.] , United. States Consul, acting judicially. 78. — Attest of affidavit. In the court of the United States consulate, , 18 — . On this day of , A. D. 18 — , has appeared before me, the undersigned, consul of the United States at , A. B., personally known to me, who, being sworn on the Evangelists of Almighty God, has deposed that the declarations contained in the foregoing statement in writing upon pages, are correct and true to the best of his knowl- edge and belief. [L. S.] , , United States Consul, acting judicially. 102 JUDICIAL EXTEATEERITORIAL RIGHTS. APPENDIX VIII. EEGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE UNITED STATES IN THE OTTOMAN DOMINIONS. RULES FOR TEE CONSULAR COURTS OF TEE UNITED STATES OF AMER- ICA, IN TURKEY: WITE FORMS AND A TABLE OF COSTS AND FEES. I. — Ordinary civil proceedings. How commen- 1. Oivil proceedings between American citizens must com- "''''■ mence by written petition verified by oath before the consul. 2. Ordinary personal civil actions are of three classes, viz: Three classes Contract — Comprising all cases of contract or debt. tions"*™'''^^ '"' Wrong — when damages are claimed for a wrong. Replevin — when possession of a specific article is claimed. DemaDd neces- 3. In Contract, the petition must aver that payment or a SrepievSL™"* performance St the conditions of the contract has been de- manded and withheld ; and in replevin, that the articles to be replevied have been demanded. Petitioner to 4. The petitioner shall be required to deposit a reasonable deposit money, gmjj ^q defray the probable expenses of court and defend- ant's costs. Subsequent deposits may be required, if found necessary, notice to de- 5. Upou deposit of the money, the consul shall order no- fendant. ^j^^ ^^ ^-^^ petition iu Writing, directing defendant to appear before him at a given day and hour to file his written an- swer on oath. Service. g. Noticc must be scrvcd on each defendant at least five days before return daj-^, by delivery of an attested copy of the petition and order and of any accompanying account or paper. 7. Personal service should always be required when prac- ticable. Default. 8. On proof of due notice, judgment by default shall be pronounced against any defendant failing" to appear and file his answer as required ; but the default may be taken oil" for good cause, within one day after (exclusive of Sunday). Damages. 9. But in actions of wrong and all others where the dam- ages are in their nature unliquidated and indefinite, so that they cannot be calculated with precision from the statements of the petition, the amount of the judgment shall be ascer- tained by evidence, notwithstanding the default. Answer. jQ. If defendant appears and answers, the consul, having Settlement or ^^^^ partics bcforc him, shall, before proceeding farther, reference encour- encourage a Settlement by mutual agreement or by submis- SK"''- sion of the case to referees agreed on by the parties', a major- ity of whom shall decide it. Amendments. n. Parties should at the trial be confined as closely as may be to the averments and denials of the statement and answer, which shall not be altered after filing except by leave granted in open court. JUDICIAL EXTRATERRITORIAL RIGHTS. 103 12. On application of either party and advance of the fees, Amerioau wit- the consul shall compel the attendance of any witness within toluenT' his jurisdiction, before himself, referees, or commissioners. 13. Each party is entitled, and may be required, to testify. Partiesarewit- 14-. Judgment may be given summarily against either ° Decrees to be party failing to obey any order or decree of the consul. obeyed. ATTAOHMENT AND ARREST. 15. For sufficient cause and on sufBcient security, the con- sul, on filing a petition, may grant a process of attachment of any defendant's property to a sufficient amount, or of arrest of the person of any defendant not a married woman, nor In the service of. the United States under commission from the President, nor otherwise exempted by law. 16. Defendant may at any time have the attachment dis- .pissoiution of ,,,, -J.- 1 ■■ 1 ., attachments. solved by depositing such sum or giving such security as the consul may require. 17. Perishaijle property, or such as is liable to serious able piope?ty'*' depreciation under attachment, may, on petition of either^ party, be sold by the consul's order and its proceeds depos- ited in the consulate. 18. Any defendant arrested or imprisoned on civil peti-^^^^iease of tion shall be released on tender of a sufficient bond, deposit of a sufficient sum, or assignment of sufficient property. 19. Any person under civil arrest or imprisonment may Debtor's dis- have his creditor cited before the consul to hear a disclosure of the prisoner's affairs under oath, and to question him thereon, and if the consul shall be satisfied of its truth and thoroughness, and of the honesty of the debtor's conduct towar d the creditor, he shall forever discharge him from arrest upon that debt, provided the prisoner shall offer to transfer and secure to his creditor the property disclosed or sufficient to pay the debt, at the consul's valuation. 20. The creditor must advance to the jailer his fees and nebtoi's board. payment for his prisoner's board uutil the ensuing Monday, and afterwards weekly, or 1he debtor will be discharged from imprisonment and future arrest. EXECUTION. 21. On the second day after judgment (exclusive of Sun- day) execution may issue enforcing the same, with interest at 12 per cent, a year, against the property and person of the debtor, returnable in 30 days and renewable. 22. Sufficient property to satisfy the execution nnd all ex- Seizure and sale penses may be seized and sold at public auction by the offi- " P™P°''*y- cer after due notice. 23. Property attached on petition and not advertised for sale within ten days after final judgment shall be returned to the defendant. 24. When final judgment is given in favor of defendant, . Effect of flnai his person and property are at once freed from imprison- OmT' ^°'' ''"" ment or attachment, and all security by him given dis- charged. And the consul may, at his discretion, award him compensation for any damage necessarily and directly sus- 104 JUDICIAL EXTEATEERITORIAL EIGHTS. tallied by reason of such attachment, arrest, or imprison- ment. EXEMPTION AND DISCHARGE. 25. The consul may exempt from attachment, seizure, or assignment any articles of personal property Indispensable to the comfort of the owner or his family, and he may at any time release or bail any debtor, discharge any security or dissolve the whole, or a part, of any attachment, when justice requires. OFFSET. 26. In actions of contract, defendant may offset petition- er's claim by any contract claim, filing his own claim under oath with his answer. Petitioner shall be notified to file his answer seasonably on oath, and the two claims shall then be tried together and but one judgment given for the differ- ence, if any proved, in favor of either party ; otherwise for defendant's costs. COST. 27. Except as hereinafter provided, the party finally pre- vailing recovers costs, to be taxed by him and revised by the consul. TRUSTEE PROCESS. 28. In contract, the consul may order defendant's prop- erty or credits in a third party's hands within the jurisdic- tion of the United States to be attached on the petition, by serving him with due notice as trustee, provided petitioner secures trustee his costs by adequate special deposit. 29. If adjudged trustee, the third party may retain his costs from the amount for which he is adjudged trustee, if sufficient ; otherwise, the balance of trustee's costs must be paid out of petitioner's special deposit, as must the whole of his costs if not adjudged trustee. ex?cS?"n w?ffi ^^" '^^^ amount for which a trustee is charged must be ten d"ys" ^' '" Inserted in the execution and demanded of him by the officer within ten days after judgment, or all claim on him ceases. Process against the property or person of trustee may issue ten dajrs after demand. aUcaetiSdoUa™^ 31. If petitioner recovers judgment for less than $10, or if less than $10 of defendant's property or credits is proved in the third party's hands— in either case the third party must be discharged, with costs against petitioner. REPLEVIN. 32. Before granting a writ of replevin, the consul shall require petitioner to file a sufficient bond, with two respon- sible sureties, for double the value of the property to be re- plevied, one an American citizen, or petitioner may deposit the required amount. 11.— Tender, etc. Deposit. 33_ Before a creditor files his petition in contract, his debtor may make an absolute and unconditional offer of the Trustee's costs. JUDICIAL EXTRATERRITORIAL RIGHTS. 105 amount he considers due by tendering the money in the sight of the creditor or his legal representative. 34. If not accepted, the debtor shall, at his own risk and .^,'\™''",'^ "^ paying the charges, deposit the money with the consul,^' "*"" wlao shall receipt to him and notify the creditor. 35. It shall be paid to the creditor at any time if de- costs. manded, unless previq,usly withdrawn by depositor. 36. If the depositor does not withdraw his deposit, and upon trial is not adjudged to have owed petitioner at the time of the tender more than its amount, he shall recover a)l his costs. OFFER TO BE DEFAULTED. 37. At any stage of a suit in contract or wrong, defend- ant may file an offer to be defaulted for a specific sum and the costs up to that time, and if petitioner chooses to pro- ceed to trial, and does not recover more than the sum of- fered and interest, he shall pay all defendant's costs arising after the offer, execution issuing for the balance onhf. in. — Reference. 38. When parties agree to a reference, they shall imme- diately file a rule and the case be marked " Referred " ; a commission shall then issue to the referees, with a copy of all papers filed in the case. 39. The referees shall report their award to the consul. Award ana ao- who shall accept the same and give judgment and issue ex- ""p**"""- ecution thereon, unless satisfied of fraud, perjury, corrup- tion, or gross error in the proceedings. 40. In cases involving more than $500, if his acceptance ^j^^^^Jr^.^s^; is withheld, the consul shall at once transmit tlie whole case, ter. ^ ""°'^' with a brief statement of his reasons and the evidence therefor, to the minister resident, who shall give judgment on the award or grant a new trial before the consul. IV. — Appeal. 41. Appeals must be claimed before three o'clock in the To be oiajined afternoon of the day after the judgment (excluding Sunday), ^' '" ™^ ^^' but in civil cases only upon suflQcient security. 42. Within five days after judgment, the appellant ^wst ^^mus^ te^^^er^ set forth his reasons by petition filed with the consul, which dayl. ^' shall be transmitted as soon as may be through the consul- general to the minister, with a copy of the docket entries and of all papers in the case. 43. The consul-general may allow any prisoner (by law^^^ppe^Jofg™; entitled to appeal) sent to Constantinople for imprisonment stantinopie. on sentence of a consul, to file his appeal within ten days after notice of his arrival, if in his judgment justice would be promoted thereby, requiring such prisoner to file with the appeal his petition, which shall be at once transmitted to the minister. V. — New trial. 44. On proof of the perjury of any important witness of I'or perjury the prevailing party upon a material point affecting the de- 106 JUDICIAL EXTRATERRITORIAL RIGHTS. cision of a suit, the consul who tried it may within a year after final judgment grant a new trial, on such terms as he may deem just. Gciidiaiy. 45. Within one year after final judgment in any suit in- volving not'more than $500, the consul who tried it, or his successor, may upon sufficient security grant a new trial, when justice manifestly requires it ; if exceeding $500, with concurrence of the minister. VI. — Habeas corpus. ^jkvesnottobe 4(}, j;i"o cousul Shall rccoguize the claim of any American citizen to hold any person in slavery or bondage within the Turkish Empire. Habeas cQrpns. 47. Upou application of any person in writing and under oath, representing that he or any other person is enslaved, unlawfully imprisoned, or deprived of his liberty by any American citizen within the jurisdiction of a consul, such consul or the consul-general may issue his writ of habeas corpus directing such citizen to bring said person, if in his custody or under his control, before him, and the question shall be determined summarily, subject to appeal. VII.— Divorce. ne'sf^'"^'^™^" ^^" I^i'^^^s for divorce must be signed and sworn to before the consul, and on the trial each party may testify. Attachment. 49. The consul, for good cause, may order the attachment of libellee's property to such an amount and on such terms as he may think proper. Husband toad- 50. He may also, at his discretion, order the husband to yance money, advaucc to his wife Or pay into court a reasonable sum to enable her to prosecute or defend the libel, with a reasona- ble monthly allowance for her support pending the proceed- ings. Alimony. 51, Alimouy may be awarded or denied the wife on her ChUdren. divorcc at his discretion. Custody of the minor children may be decreed to such party as justice and the children's good may require. Eeieaseofboth. 52. Divorce releases both parties, and they shall not be remarried to each other. Costa- 53. Costs are at the discretion of the consul. VIII.— Marriage. ^^_ecord and.re- 54^ g^ch cousul Shall record all marriages solemnized by him, or m his official presence, and at the end of each year transmit a copy to the Secretary of State and to the consul- general. IX.— Births and deaths. 55. The birth and death of every American citizen or protege within the limits of his jurisdiction shall likewise be recorded and annually transmitted. JUDICIAL EXTRATERRITORIAL RIGHTS. 107 X. — List op citizens and proteges. 56. Each consul shall prepare and keep a correct list of List of citizens, all adult male citizens of the United States living within his jurisdiction, with their age, birthplace, occupation, resi- deuce, and year of arrival in Turkey, and the names, &c., of the members of their families ; adding the date and court in case of naturalized citizens. 57. Also a similar list of all proteges of the United States, List of proteges. adding the year of their original protection, by whom it was granted, and where ; also the date of their last permit of residence and by whom issued. 58. A copy of said lists shall be transmitted to the Secre- Annual return. tary of State, to the minister resident and to the consul-gen- eral, when completed, and a memorandum of the changes at the end of each year. And every citizen and protege is re- quired to register himself and family at the consulate each Eegistration. December. XI. — Bankruptcy, partnership, probate, &c. ' 59. Until promulgation of further regulations, consuls ^^t^^^rVj^^'J^y^i^"; will continue to exercise their former lawful jurisdiction ued. and authority in bankruptcy, partnership, probate of wills, administration of estates, and other matters of equity, ad- miralty, ecclesiastical and common law not specially pro- vided for in the foregoing orders, according to such reason- able rules, not repugnant to the Constitution, treaties, and laws of the United States, as they may find necessary or convenient to adopt. XII. — Seamen. 60. In proceedings or prosecutions instituted by or against American seamen, the consul may, at his discretion, sus- pend any of these rules in favor of the seaman, when, in his opinion, justice, humanity, and public policy require it. XIII. — Criminal proceedings. 61. Complaints and inforniations against American citi- How cona zens should always be signed and sworn to before the con- ™™''® ' sul, when the complainant or informant is at or near the consul's post. 62. All complaints and informations not so signed and How authenti- sworn to by a citizen of the United States, and all com- ''*'®^" plaints and informations in capital cases, must be authen- ticated by the consul's certificate of his knowledge or belief of the substantial truth of enough of the complaint or in- formation to justify the arrest of the party charged. 63. Nocitizen sliall be arraigned for trial until the offense ^.c^py of acousa- charged is distinctly made known to him by the consul in respondent's own language; in cases of magnitude, and in all cases when demanded, an attested copy (or translation) of the complaint, information, or statement authenticated by the consul shall be furnished him in his own language as soon as may be after his arrest. 108 JUDICIAL EXTRATERKITORIAL EIGHTS. Presence of ac- (j4_ fj'he persoual presence of the accused is indispensable throughout the trial. May testify. 65. He shall always have and be informed of his right to testify, and cautioned that if he chooses to ofier himself as a witness, he must answer all questions that may be pro- pounded by the consul or Ms order, like any other witness. Anierioau wit- p6. The government and the accused are equally entitled "oatteiui™^^ " to compulsory xirocess for witnesses within the jurisdiction of the United States; and if the consul believes the accused unable to advance the fees, his necessary witnesses shall be summoned at the expense of the United States. riuc-md costs. Q'j _ When punishment is by fine, costs may be included or remitted at the consul's discretion ; an alternative sen- tence of not less than 30 days' imprisonment may take effect on non-payment of any part of the flue or costs adjudged in any criminal proceeding. 68. Any j)risoner before conviction may be admitted to bail by the consul who tries him, except in capital cases. Capital cases. (j9. No prisoner charged with a capital offense shall be admitted to bail where the proof is evident or the presump- tion of his guilt great. After con vie- 70. After couvictiou and appeal, the prisoner may be ad- ''™' mitted to bail only by the minister or consul-general. American bail. 71. Any citizeu of the United States offering himself as bail shall sign and swear before the consul to a schedule of unencumbered property of a value at least double the amount of the lequired bail. Foreign Laii. 72. Any Other proposed bail or security shall sign and swear before the consul to a similar schedule of unencum- bered personal property within the local jurisdiction of the consulate, or he may be required to deposit the amount in money or valuables with the consul. Two sureties, 73. Uulcss such sufflcieut citizen becomes bail, or such deposit is made, at least two sureties shall be required. Surrender. 74. Any American bail may have leave of the consul to surrender his principal on payment of all costs and ex- penses. maVbe^rc'iiufred ^^' '^^^' co^plaiuaut, informant, or prosecutor may be re- to give seoai-ity. quired to give security for all costs of the prosecution, in- cluding those of the accused; and every complainant, &c., not a citizen of the United States shall be so required, unless, in the consul's opinion, justice -nail be better promoted other- wise ; and when such security is refused the prosecution shall abate. HONORABLK ACQUITTAL. 76. When the innocence of the accused both in law and m intention is manifest, the consul shall add to the usual Costs judgment of acquittal, the word " Honorably." 77. In such case judgment may be given and execution issued summarily against any informer, complainant, or prosecutor for the whole costs of the trial, including those of the accused, or for any part of either or both, if the pro- ceeding appears to have been groundless and vexatious, originating in corrupt, malicious, or vindictive motives. JUDICIAL EXTBATEREITORIAL RIGHTS. 109 78. Consuls will ordinarily encourage the settlement of Minor offensos. all prosecutions not of a heinous character by the parties aggrieved or concerned. xrv.— Oaths. 79. Oaths shall be administered in some language that Language. the witness understands. 80. A witness not a Christian shall be swurn or examined Notciiristiana. according to his religious belief. 81. An avowed atheist shall not be SAvorn, but may affirm Atheists. U7ider the pains and penalties of perjury, the credibility of his evidence being for the consideration of the consul. 82. A Christian conscientiously scrupulous of an oath may Affirmation. affirm under the pains and penalties of perjury. XV. — Dockets, eecords, &o. 83. Each consul shall keep a regular docket or calendar pi^'i docUet. of all civil actions and proceedings, entering each case sep- arately, numbering consecutively to the end of his term of office, with the date of filing, the names of the parties in full, their nationality, the nature of the proceeding, the sum or thing claimed, with minutes and dates of all orderfe, de- crees, continuances, appeals, and proceedings until final judgment. 84. He shall keep another regular docket for all criminal et!^"™'"''' ''"°''" cases with sufficient similar memoranda. 85. Upon final judgment each case shall be recorded in a Records. book of records, at sufficient length to identify it and pre- vent a second proceeding for the sarne cause. 86. Civil proceedings are to be kept distinct from crimi- nal and recorded in separate books, and returns of each' made to the consul-general at the end of each year. 87. Each docket and book of records shall contain an in- dex. 88. All original papers shall be filed at once and never removed ; no person but an officer of the consulate or the minister should be allowed access to them; all papers in a case must be kept together in one inclosure and numbered as in the docket with the parties' names, the nature of the proceeding, the year of filing the petition and of final judg- ment conspicuously marked on the inclosure and each year's cases kept by themselves in their order. XVI. — Limitation of actions and prosecutions. 89. Heinous offenses, not capital, must be prosecuted Criminaj. within six years ; minor offenses within one. i 0. Civil actions based on written promise, contract, or Civii. instrument must be commenced within six years after the cause of action accrues; others within two. 91. In prosecutions for heinous offenses, not capital, and Absence. in civil cases involving more than $500, any absence of re- spondent or defendant for more than three months at a time from Turkey shall be added to the limitation; and in civil cases involving more than $100 the period during which the cause of action may be fraudulently concealed by de- fendant shall likewise be added. Annual turns. Index. Filing papers. i' r a u d u 1 c u t concealment. 110 JUDICIAL EXTEATEEEITORIAL RIGHTS. Trials public. In English. Interpreter. Translations. Testimony. Adjournments. First Monday. Holidays. Officer. Copies on ap- Copies. Befinition of 'consul." Associates. 92. No action in contract, replevin, or wrong shall be com- menced for less than $5, no trustee process for less than $10, no property attached for less than $25, nor the person arrested for less than $50 ; and if petitioner recovers less than the respective amount in either case, he shall pay all costs unless for special reasons to the contrary. XVII. — General provisions. 93. All trials and proceedings in the United States con- sular courts in Turkey shall be open and public and con- ducted in the English language. 94. Papers and testimony in a foreign language shall be translated into English by a sworn interpreter appointed by the consul; in civil cases to be paid by petitioner. Oaths and questions shall be translated by the interpreter from the English for any witness who does not understand English. 95. Parties may be required to file their petitions, an- swers, complaints, informations, and all other papers ad- dressed to the court, in English, or they may be translated by the interpreter, at the consul's discretion. All testimony musf be taken in writing in open court by the consul or his order and signed by the witness after being read over to him for his approval and correction, and it shall form part of the papers in the case. 96. The consul may adjourn his court from time to time and place to place within his Jurisdiction, always commenc- ing proceedings and giving judgment at the consulate. 97. The first Monday of each month shall be a regular court day to which civil actions will stand adjourned unless otherwise provided for. 98. No court shall sit on February 22, July 4, December 25, or on any Sunday. 99. All processes not served by the consul personally must be executed by an officer of the consulate, who shall sign and swear to his return before the consul, specifying the time and mode of service and annexing an account of his fees ; process from the consul-general shall be served by the marshal or his dexjuty. 100. On appeal, copies of all the piipers must be paid for in advance by the appellant, except in criminal cases where respondent is unable to pay. 101. Any person interested is entitled to a copy of any , paper on file on prepayment of the fee. 102. Reasonable clearness, precision, and certainty should be required in the papers, and substantial justice and all practicable dispatch is expected in the decisions; but tech- nical accuracy is not essential. 103. The word "consul" is intended to includetlie consul- general and any vice-consul or deputy consul actually exer- cising the consular power at any consulate, unless the sense requires a more limited construction. 104. Each associate in a consular trial shall, before enter- ing on his duties, be sworn by the consul. Before taking the oath, he may be challenged by either party and for suf- licient cause excused and another drawn. JUDICIAL EXTRATEERITORIAL EIGHTS. Ill 105. Consuls will always preserve order in court, punish- i^jga"'"™!"* p"" ing summarily any contempt committed in their presence or any refusal to obey their lawful summons, or order, by imprisonment not exceeding 24 hours, or by fine not exceed- ing $50, and costs. 106. Every party to a civil or criminal proceeding may be -^Moiuoy. heard in person or by attorney of his choice, or by both, but the presence of counsel shall be under the exclusive control and discretion of the consul. 107. The accounts of the consular courts shall be kept in iu'xjnfted'ltates United States currency, and every order or deposit, decree money. of costs, taxation of, fees, and generally every such paper issuing originally from the court, shall be expressed in dol- lars and cents, and satisfied in United States metallic mouey or its equivalent coin as fixed by law. XVIII. — PEOCBEDINeS WITH FOREIGNEKS. 108. All petitions, informations, complaints, and other ^^Howoommuni papers from subjects of the Sublime Porte, or subjects or citizens of any other friendly power, should be communi- cated through the Turkish authorities or the consulate of such other power. 109. All notices, answers, &c., should be communicated to such subject or citizen through said authorities or such consulate, respectively. XIX. — Mixed commissions. 110. When any foreign petitioner is entitled to a mixed ProoeediDgs. commission the suit shall be tried at the United States con- sulate or such place as the United States consul may direct, and proceedings shall be conducted as nearly as may be as in suits between citizens of the United States. 111. Every commissioner nominated by a foreign author- Approval oi ity must have his appointment acknowledged and appro^'ed ll^^^" commis- by the United States consul before taking his seat on the commission ; and all objections to the approval of the nomi- nation orappointmentof either commissioner shall be heard and determined by the consul summarily and without ap- peal. 112. The commissioner appointed by the United States Consular com consul should be a citizen of the United States, when prac- S'""'^'' *" ^'" ticable; he will always preside, and his presence is indis- pensable throughout the proceedings. XX. — Design of the rules. The promulgation of these rules abrogates no authority hitherto lawfully exercised by consuls not inconsistent here- with. XXI.— Changes. Whenever, in the opinion of the consul, a change becomes necessary in the rules, the proposed change, with the rea- sons, shall be communicated in writing to the minister, and, the change approved by him, be submitted to the other consuls and published over his signature before going into effect. 112 JUDICIAL EXTRATERRITORIAL RIGHTS. F0BM8. 1. Petition in contract. [Rules 1, 2, 3.) P. against D. To the United States consular court at G., in Turkey : P., of C, a citizen of the United States, represents that D., of C, a citizen of the United States, is indebted to him piasters, being dollars and cents in United States silver money, according to the accompanying account, payment whereof having been demanded and withheld, he asks the court to enforce. 0., , 18-. (Signed) P. United States consular court at C, , 18 — . Signed and sworn to, received, and filed. [L. s.] ■ Y. Z., United States Consul. Petition in wrong. P. against D. To the United States consular court at G. : P., of 0., &c., represents that D., of, &c., &c., on the day of -, 18 — , at C, in Turkey, unlawfully [state briefly but clearly the substance of the wrong], occasioning P. piasters, being in United States silver money dollars, damage, for which he claims recom- pense. Dated, signed, sworn to, and certified like No. 1. Petition in replevin. P. against D. To the United States consular court at C. : P. of C, &c., represents that D., of, &c., is in unlawful possession of per- sonal property of P., described in the following schedule, worth ■ piasters, being in United States silver money dollars and cents, to the immediate possession of which P. believes himself entitled. Delivery having been demanded and withheld, P. claims his property at this court. Schedule.— So. —; description, ; value, piasters, ; value, $ , C. Dated, signed, sworn to, and certified like No. I. L. S.] L. S. L. s. JUDICIAL EXTRATERRITORIAL RIGHTS. 113 4. Replevin bond. [Bule 32.] P. against D. In the United States consular court at 0., , 18 — . We, P., of, &c., petitioner in replevin, as principal, and S., of, &c., a citizen of the United States, and U., of, &c., as sureties, acknowledge ourselves jointly and severally bound for dollars, United States silver money, to D., of C, citizen of the United States, defendant, to pay all costs of said suit, and for P. to return all the property reple-^'ied, in the same condition he received it, whenever such shall be the final judgment, upon immediate full compliance with which by P. this bond will be canceled. Witness our hands and seals. (Signed) P., Principal. S., Surety. U., Surety. Signed and sealed before me approved, and filed. Y. Z., United States Consul. Order of notice to defendant. [Bule 5.] P. against D. United States consular court at 0., , 18 — . To the officer : Sir: l^otify Mr. D. to appear at the United States consulate at C, on day , 18 — , at o'clock in the noon, to present under oath his written answer to the foregoing petition, by serving him (personally) with an attested copy of the petition (and account) and of this order at least five days beforehand, making return of your service herein under oath. [L. S.] , Y. Z., United States Consul. 6. Officer's return of service. [Rules 7, 99. ] P. against D. To the' United States consular court at C. : I have to-day served an attested copy of the foregoing petition and accompanying account, and of the order of court, on Mr. D. (person- ally', or as directed, at C. Dated, signed, sworn to, and certified like No. 6. S. Mis. 89—8 114 JUDICIAL BXTBATERKITOEIAL RIGHTS. 7. Attest of a copy. [Rule 6,] United States consular court at C, , 18 — . The foregoing is a copy of the original filed in this court. Attest: [L. s.] Y. Z., ' United States Consul. 8. Defendant's answer. [ Rules 5, lO.J P. against D. To the United States consular court at G. : D., of C, a citizen of the United States, summoned to answer the petition of P., in (contract), replies: [Here deny any statement of P. which you are able to controvert, and add any statement or explanation of your own.] Dated, signed, sworn to, and certified like No. 1. 9. Judgment by default. [Rule 8.] P. against D. United States consular court at C, , 18 — . D., of C, citizen of the United States, having been duly served with (personal) notice of this suit, , 18 — , as appears by the offtcer's sworn return thereon, and failing to appear and answer to-day, as re- quired, judgment is given in favor of P., of, &c., &c., against D. bj"^ de- fault for piasters, being dollars and cents, in United States silver money (debt), or damages, and dollars and cents costs. Y.Z., United States Consul. 10. Agreement to settle. [Rule 10.] P. against D. In United States consular court at 0. We, P. and D., parties to a suit in (contract), pending before this court, by advice of the consul, voluntarily settle the case, as follows, viz: [Here state the terms of settlement distinctly.] C, , 18-. (Signed) p., Petitioner. D., Defendant. Done and acknowledged in my presence, filed, and case dismissed. Y.Z., United States Consul. JUDICIAL EXTEATEERITOKIAL RIGHTS. 115 11. Agreement to refer. [Rules 10, 38.] P. against D. In United States consular court at C, , 18 — . We, P., of, &c., and D., of, &c., parties to a suit in (contract), pending before this court, encouraged by the consul, voluntarily agree to submit the controversy to the decision of Messrs. R., of C, citizen of the IJnited States, E., of, &c., &c., and F., of, &c., «&c., referees agreed on by us, a majority of whom shall decide it. And after suitable notice to both parties, the referees may proceed ex-parte. Witness our hands and seals. (Signed ) P., Petitioner. D., Defendant. L. g. L. S. Agreed to and acknowledged before me, filed, and case marked " Ee- ferred." Y.Z., United States Consul. 12. Commission to referees. [Rule 38.J P. against D. United States consular court at C, , 18 — . To Messrs. R., of, &c,, &c., B., of, &c., and P., of, &c. : ' Gentlemen : Messrs. P., of, &c., and D., of, &c., parties to a suit in (contract), pending before this court, having agreed to submit it to your decision, you are appointed referees to hear, a majority of yon having power to decide, the case. After suitable notice to each party of the time and place of meeting for trial, you may proceed ex-parte, in case either refuses or neglects to appear. You will patiently and impartially hear the parties and their witnesses, taking down all the evidence in writing in open court, carefully reading his testimony to each witness before allowing him to sign the same. You will report your award, sealed, to me, returning this commission with the testimony and all copies and papers, taxing your own fees and the parties' costs. [L. S.J Y. Z, United States Consul. 13. Award of referees. [Rule 39.J P. against D. To the United States consular court at G. : We, the referees commissioned to hear and decide the suit of Mr, P., of, &c., against Mr. D., of, &c., in (contract), have the honor to report that we gave each party suitable notice of the time and place of our meeting 116 JUDICIAL EXTRATERRITORIAL EIGHTS. for trial, and (both) or Mr. P., appeared (personally) [or by attorney] and the case was fully and impartially heard on [state each of the days], and (we) [or a majority of us] this day award judgment in favor of Mr. P. against Mr. D. for piasters, being dollars and cents, in United States silver money (debt), or damages, and dol- lars and cents, costs of reference ; costs of court to be taxed by the court. And we return our commission, with all the testimony taken down in open court and signed by each witness after hearing the same read to him, with the copies of petition, answer, and all other papers filed in the case. D., , IS-. (Signed) R. E. F. 14. GonsuVs acceptance of award. P. against D. United States consular court at C, , 18 — . Eeceived, filed, and accepted. Judgment given on the award in favor of Mr. P. for piasters, being dollars and cents. United States silver money (debt), or damages, and dollars and cents costs. [L. s.] Y. Z., United States Consul. 15. Consul's transmission of unaccepted aivard to the minister. [Rule 40.] P. against D. To the minister resident of the United States of America near the Sublime Porte at Constantinople. Sir : I have the honor to transmit the award of Messrs. E., E., and F., referees agreed on by the parties, and commissioned by me ■, 18 — , to hear and decide the suit of Mr. P. against Mr. D.in (contract), pend- ing before this court, and all the copies, testimony, and papers filed in the case. I regret that I cannot accept the award for the following reasons : [State the reasons and the evidence therefor.] Y. Z., United States Consul. 16. Summons to witness. [Bule 12.] P. against D. United States consular court at C, , 18 . To Mr. W.,ofC.,a citizen of the United States : Sir: At the request of the petitioner, $ is hereby tendered you as fees, and you are required, in the name of the United States, to ap- JUDICIAL EXTEATEKKITORIAL RIGHTS. 117 pear (before this court at the consulate), or before Messrs. E., E., and F., referees, or commissioners at (forthwith) [or on day , 18 — , at o'clocli in the noon], to testify in said case. [L. s.] Y. Z., United States Gonsvl. 17. Summons to witness in criminal proceeding. [Rule 66.] United States of America against E. United States consular court at C, , 18 — , To Mr. W., of C, a citizen of the United States : Sir : In the name of the United States, your are required to appear (before this court at the consulate) forthwith, or on, &c., &c., to testify in a prosecution against Mr. E. [L. S.] Y. Z., United States Consul. 18. Summary judgment on neglect to obey order or decree of consul. [Rule 14. J P. against D. United States consular court at 0., , 18 — . P. (petitioner), not having obeyed my order of , 18 — , requir- ing him to [state the order], judgment is given against him in favor of D. (defendant), summarily, for his full costs, taxed at $ [or any other appropriate judgment]. Y.Z., United States Consul. 19. Application for attachment of defendants property or arrest of his person. [Rule 15.] P. against D. To the United States consulcir court at C. : P., of, &c., petitioner, solicits the attachment of $ of the prop- erty or the arrest of the person of D., defendant in a suit in (contract), commenced to-day before this court, for the following reasons [state the reasons and the evidence]. Dated, signed, etc. 20, Bond of applicant for attachment or arrest. P. against D. [First part similar to replevin bond, No. 4, with condition] to pay all loss or damage that may be adjudged by the court to have been oeca- 118 JUDICIAL EXTRATEREITORIAL EIGHTS. sioned D., of, &c., defendant (by attachment of his property), or by arrest of his person on application of P. to day. [Dated, signed, sealed, approved, and filed like No. 4.] 21. Process of attachment. P. against D. United States consular court at C, , 18 — . To the officer : Sir : In the name of the United States attach any personal property of Mr. D., defendant, within the jurisdiction of this court (except) [name any property thought proper to exempt under Eule 25] to the value of $ , and hold it until further order of court, making immediate re- turn of your action under oath. [L. S.] Y. Z., United States Consul. 22. Application for sale of attached property. [Rule 17.] P. against D. To the United States consular court at C. : P., petitioner, or D., defendant in said suit pending before this court, requests that the following personal property attached on said suit, , 18 — , and now held by the officer, being perishable, or liable to serious depreciation under attachment, may be sold, to wit: [annex a schedule]. Dated, signed, and filed. 23. Consul's order of sale. P. against D. , United States consular court at C, , 18 — . To the officer: Sir : In the name of the United States sell at public auction for cash the property above named, giving public notice thereof, and serving the parties seasonably with an attested copy of the application and of this order, making return to court under oath. [L. s.] Y. Z., United States Consul. 24. Public notice of sale. P. against D. By order of the United States consular court at C, dated 18—, I shall sell at public auction for cash to the highest bidder on ,, JUDICIAL EXTRATERRITORIAL RIGHTS. 119 day , 18 — , at o'clock in the noon, at in C, the following personal property of Mr. D., of, &c., (attached) or seized by me on a (petition) or execution in favor of Mr. P. [annex a schedalel. O. Officer, . C, , 18—. 25. Order of dissolution of attachment. \Rule 25.] P. against D. United States consular court at C, , 18 — . To the officer : SiE: The attachment on the property of Mr. D., defendant in said suit, is dissolved. [L. s.] Y. Z., United States Consul. 26. Process of civil arrest. [Rule 15.] P. against D. United States consular court at C, , 18 — . To the officer : Sir: In the name of the United States arrest the person of Mr. D., of C, a citizen of the United States, defendant in said suit, and bring him before this court to show why he should not be committed to jail on petition of Mr. P., filed to day. [L. S.] Y. Z., United States Consul. 27. Process of commitment on civil arrest. P. against D. United States consular court at 0., , 18 — , To the officer : Sir: In the name of the United States commit forthwith to jail Mr. D., of C, a citizen of the United States, defendant in said suit in (contract), pending before this court, on petition of Mr. P., of C, and there let him be safely kept, unless discharged by said P., until further order. [L. S.] Y. Z., United States Consul. 28. Bail bond of defendant arrested on petition. [Rule 18.] P. against D. [Similar to replevin bond, ISTo. 1, conditioned] that D., the defendant, principal, shall, within ten days after final judgment against him in 120 JUDICIAL EXTRATERRITORIAL RIGHTS. said suit, pay the amount thereof, and all legal charges, or surrender himself into the custody of this court. [Dated, signed, approved and filed like No. 4.J 29. Citation of defendant or debtor to petitioner or creditor. [Rule 19.] P. against D. To the United States consular court at G. : I, D., of, &c. (defendant in said suit, arrested on petition of P., of, &c., pending before this court), or debtor of P, of, &c., by judgment of this court, dated , 18 — , and now under arrest [or committed to jail thereon by order of this court], desire to cite P. before this court on day , 18 — , at o'clock in the noon, at the consulate, to hear my disclosure of my affairs on oath, and to question me thereon, if he thinks proper. C, ,18-. (Signed) D. 30. Consul's notice to petitioner or creditor. United States consular court at 0., , 18: — . To the officer : Sir : Notify Mr. P., petitioner (or creditor), that the foregoing prayer of Mr. D. (said defendant), or his debtor, is granted, and that he, Mr. P., is cited to appear at the time and place and for the purpose named, by serving, &c. [like notice to defendant No. 5]. 31. Oath, schedule and assignment of defendant or debtor. P. against D. In United States consular court at 0. I, D., of, &c. [defendant in said suit in (contract), pending before this court], or judgment debtor of P., of, &c., and (under arrest) or im- prisonment by said P. (on petition dated , 18 — ), or on execution from this court dated , 18—, issued on a judgment of , 18—, for $ , debt, and $ costs, solemnly swear that the following is a faithful schedule of all the property which I own, or in which I have any interest, and I am ready to assign it, or such part as the court may order, to said P. (petitioner, towards payment, to take effect whenever he shall recover judgment against me) or to said P., my creditor, towards payment of my debt. Schedule.— No., description, locality, nature of interest, value. P., $ c. [Dated, signed, sworn to, and certified like No. l.J Assignment. I hereby assign to P. (petitioner) all my interest in all the property described in the foregoing schedule, for $ , being the valuation of JUDICIAL EXTRATEKRITOEIAL EIGHTS. 121 court (to take effect whenever he shall recover judgment against me), or to said P., my judgment creditor, &c., &c., for $ , &c., towards payment of my debt. [If a part of the property only is to be assigned, say, after specifying it, &c.,] in payment of my debt, according to the valuation of court. [Dated, signed, sealed, acknowledged and certified to.] b., , 18-. Accepted. (Signed) P., Creditor. 32. Consul's certificate to defendant or debtor of discharge, on disclosure or on security. P. against D. United States consular court at C, , 18 — . To Mr. D., of, &c. : Sir : (Having made a satisfactory disclosure of your affairs), or hav- ing given sufftcient security to Mr. P., of, &c.. petitioner, before this court to-day, you are hereby forever discharged from arrest or imprison- ment by reason of [describe the judgment and execution or petition]. [L. s.] ■ Y. Z., United States Consul. 33. ConsuVs order of release. [Rule 25.] P. against D. United States consular court at C, , 18 — . To the officer : Sir: In the name of the United States, forthwith release Mr. D., of, &c., now in your custody -(on petition) or judgment in favor of Mr. P, [L. S.] Y. Z., Uuited States Consul. 34. Final judgment on trial. P. against D. United States consular court at C, , 18 — . Having heard and tried the foregoing action in (contract), commenced before this court, , 18—, I adjudge that Mr. D., defendant, pay Mr. P., petitioner, dollars and cents, in United States silver money (debt), or damages, and dollars and cents, costs. [L. s.] Y. Z., United States Consul. 122 JUDICIAL EXTRATERRITORIAL RIGHTS. 35. Defendants offset statement. [Rule 26.) P. against D. [Add to defendant's answer, No. 8] and D. also represents that P., the petitioner, is indebted to hitn piasters, being dollars and cents, according to the accompanying claim, which he de- sires to file in offset to P.'s account, and to have the whole matter tried together. [Dated, signed, sworn to, and certified like No. 1.] 36. Application for trustee process. [Rule 28.] P. against D. and T., trustee. To the United States consular court at G. : P., of, &c., petitioner in said suit, represents that T., of C, a citizen of the United States, is, as he is satisfied, indebted to D., defendant, or has eftects, credits, means, or property of defendant in his hands and possession, within the Turkish empire, which P. asks to have attached in T.'s hands, and that T. may be summoned as D.'s trustee, and di- rected to pay the same to P., for the following reasons : [State the reasons.] Dated, signed, sworn to, and certified like No. 1. 37. Order of notice to trustee. ' P. against D. and T., trustee. United States consular court at C, , 18 — . To the officer : Sir : Notify Mr. T., of C, a citizen of the United States, to appear at the United States consulate at C, on day, , 18 , at o'clock in the noon, to file on oath his reasons why he should not be adjudged trustee of Mr. D., of, &c., by serving him personally with an attested copy of his application and of this order, at least five days beforehand, making return of your service hereon under oath. L- s.] Y. Z., United States Consul. 38. Common execution. [ Rule 21.] P. against D. United States consular court at 0. To the officer : Sir : Final judgment having been given by this court in favor of Mr. P., of, &c., against Mr. D., of, &c., for dollars, and cents, JUDICIAL EXTEATEREITORUL EIGHTS. 123 in United States silver money (debt), or damages, and dollars, cents, costs, dated , 18 — , you are required, in the name of the United States of America, to collect the same, amounting to $ , with interest at 12 per cent, a year from said date of judgment, and $ (1) more for this (and another) execution, besides your legal fees ; and, un- less paid on demand, you are directed to seize any of his property within the jurisdiction of this court that may be shown you by Mr P., and sell sufficient thereof at public auction after due notice ; and for want thereof to arrest said debtor's person and bring him before this court, making return hereon of all your acts within 30 days. Given under my hand and the seal of the United States, this day of , A. U. 18 — , and of the independence of the United States the . [L. S.] Y. Z., United States Consul. 39. Trustee execution. [Rule 30.] P. against D. and T., trustee. United States consular court at C. To the officer : Sir: Pinal judgment having been given by this court in favor of Mr. P., of, &c., against Mr. D., of, &c., as principal defendant, for dollars, and cents (debt), or damages, and dollars, and — cents, costs, and against Mr. T., of, &c., as trustee of Mr. D., for dollars and cents, all in United States silver money, dated , 18 — , you are required, in the name of the United States of America, to collect the same, amounting to $ , with interest at 12 per cent, a year from said date of judgment, and $ (1) more for this (and another) execution, besides your legal fees ; and unless paid by Mr. D. on demand, to demand the same [or the amount for which he is adjudged trustee less his costs taxed at $ ] of Mr. T., within ten days after said date of judgment ; and if still unpaid, you are directed to seize any of the principal defendant's property within the jurisdiction of this court that may be shown you by Mr. P., and sell sufficient thereof at auction after due notice; and for want thereof to arrest his person and bring him before this court, or after ten days subsequent to your demand on said trustee, to proceed in the same manner against his property and •person, making return (&c., like common execution ISTo. 38). 40. Replevin execution against defendant. [Rule 32.] P. against D. United States consular court at C. Final judgment having been given by this court in favor of Mr. P., of, &c., against Mr. D., defendant in replevin, for possession of the personal property replevied by him, — — , 18—, and for his costs, taxed at I , dated , 18 — , you are required [&c., like common execu- tion, No. 38]. Also to deliver up to Mr. P. the accompanying bond, filed by him , 18 — , and cancelled by me. Given [&e., like No. 38.] 124 JUDICIAL EXTRATERRITORIAL RIGHTS. 41. Replevin execution against petitioner. P. against D. United States consular court at 0. To the officer : Sm : Final Judgment having been given by this court in favor of Mr. D., of, «&c., against Mr. P., petitioner in replevin, for a return of (all) or a part of the personal property replevied from him , 18 — , and for his costs, taxed at $ , dated , 18 — , you are required, in the name of the United States of America, to demand and receive of Mr. P., the immediate return of said property, to wit : [schedule of property returned] in as good condition as he received it, and payment of said costs and interest at 12 per -cent, a year and $ (1) more for this (and another) execution, besides your legal fees. Making return hereon [&c., as common execution ISTo. 38]. 42. Appellant's petition. [Rule 42.] D., appellant against P. To the Minister Resident of the United States : Sir : D., of, &c., a citizen of the United States, appeals from the judg- ment of the United States consular court at C, given , 18 — , against him and in favor of P., of, &c., in a suit of (contract) for [state the judgment] because Mr. A., one of the associates, dissents from said judgment, as appears by the record, and because [state your reasons.] (Signed) D. C, , 18-, United States consular court at C, , 18 — . SiE : Mr. D., appellant, having seasonably tiled his appeal, with sufd- cient security, I have allowed it, and now have the honor to transmit his petition, with copies of all the papers. Y. Z., United States Consul. To the Minister Eesident of the United States of America near the Sub- lime Porte, at Constantinople. 43. Petition for new trial. [Rules 44, 45.] D. against P. To the United States consular court at G. : D., of, &c., represents that he was defendant, or petitioner, in a suit m (contract) before this court, against P., of, &o. That judgment was JUDICIAL, EXTRATERRITORIAL RIGHTS. 125 rendered against him for $ , debt (or damage) and $ costs, , 186- (and execution issued , 18 — ). (That W., a material interest for P., has since been proved to. have testified falsely on said trial touching a material point, affecting the decision of the case). [If for other cause than perjury, state the reasons, instead of the words in parenthesis.] Wherefore he asks for a new trial. [Dated, signed, sworn to, and certified like No. 1.] 44. Grant of new trial. D. against P. United States consular court at C, , 18 — . The foregoing petition of Mr. D. for a new trial of the suit in (con tract) wherein judgment was given against him and in favor of Mr. P. for $ (debt), and $ , cost, , 18 — , is granted, and a new trial of the suit ordered before this court, for the following reasons, and on the following conditions : Name them.] L. s.] Y. Z., United States Consul. , 18 — . Mr. D., having performed the foregoing conditions, day, , 18—, is assigned for a new trial of the suit. [L. s.] Y. Z., United States Consul. 46. Petition for habeas corpus. [Rule 47.] P. against D. To the United States consular court at C. : P., of, &c., represents that he, or V., of, &c., is unlawfully deprived of his liberty by D., of 0., a citizen of the United States, at 0., in Tarkey, and solicits relief. [Dated, signed, sworn to, and certified like No. l.J 46. Writ of habeas corpus. P. against D. United States consular court at 0., , 18 — . To the officer : Sir: Notify Mr. D., of, &c., a citizen of the United States, to appear at the United States consulate at C, and to bring with him Mr. P., of, &c., if he has him in his custody or under his control, by serving Mr. D. (personally) with an attested copy of the petition and of this order, making return of your service hereon under oath. [L. s,] Y. Z., United States Consul. 126 JUDICIAL EXTEATERRITOEIAL RIGHTS. 47. Execution in habeas corpus. [Rule 47.] P. against D. United States consular court at C, , 18 — . To the officer : Sir: Final judgment having been given by this court in favor of Mr. P., of, &c. (petitioner), in habeas corpus against Mr. D. for unlawfully depriving him of his liberty at C, in Turkey, and for his costs, taxed at $ , in United States silver money, dated , 18—, you are re- quired in the name of the United States of America forthwith to set Mr P. at liberty, and to collect [&c., like Common Execution No. 38]. 48. Decree for husband to advance money on libel for divorce. [Rule 50.] L. against L., in divorce. United States consular court at C, , 18 — . Ordered that Mr. L. pay into court within days dollars to enable his wife to prosecute her (or defend his) libel for divorce pend- ing before me. (Also that he advance or secure to her ■ dollars, monthly, for her support, payable on the first day of each mouth during the pendency of the libel, or until further order.) [L. s.] Y. Z., United States Consul. 49. Certificate of divorce. L. against L., in divorce. United States consular court at 0. Upon the libel of Mr. or Mrs. L., of, &c., filed , 18—, against Mrs. or Mr. L., a full divorce was decreed by this court for [state the cause], and the bond of m atrimony dissolved, , 18 — . [G-iven, &c,, 'like No. 38.] i > > 50. Criminal complaint. [Rule 61.] United States of America against E. To the United States consular court at G. : C, of, &c., on oath complains that R., of C, a citizen of the United States at C, in Turkey, on , 18—, unlawfully [state the offense . I Dated, signed, sworn to, and testified, like No. 1.] JUDICIAL EXTRATERRITORIAL RIGHTS. 127 51. Warrant to ap^Jrehend accused. United States of America against E. United States consular court at C. To the officer : SiE : In the name of the United States of America forthwith appre- hend Mr. E., of, &c., a citizen of the United States, and bring him be- fore me to answer the complaintjof Mr. C, charging him with the offense of , at C, , 18 — , for which this shall be your sufldcient war- rant. Given [&c., like No. 38]. 52. Warrant without complaint or information. [Rule 62.] United States of America against E. United States consular court at 0. To the officer : SiK : Upon facts within my own knowledge, or which I have reason to believe true, you are required, in the name of the United States ot America, forthwith to apprehend Mr. E., of, &c., a citizen of the United States of America, and to bring him before me to answer to a charge ot [&c., like No. 51]. 53. Warrant to apprehend witness refusing to appear when summoned in any case. [Rules 12, 66.] United States of America or P. against E. United States consular conrt at 0. To the officer : Sir : In the name of the United States of America, forthwith appre- hend and bring before me Mr. W., of, &c., a citizen of the United States, to testify in said case, and to explain his failure to appear and testify, , 18 — , as summoned. [For which, &c., like No. 38.] 54.- Bail bond in criminal case. [Rule 68.] United States of America against E. In the United States consular court at C. We, E., of 0., a citizen of the United States, as principal, and S., of C, citizen of the United States, and T., of, &c., as sureties, acknowledge ourselves iointly and severally responsible for the immediate personal appearance of Mr. E. before this court whenever called for, and to pay 128 JUDICIAL EXTEATEREITOEIAL EIGHTS. to the United States consul at C, or his successor, dollars on de- mand, for the use of the United States of America, whenever the consul shall adjudge that said E. has failed to appear and answer to a criminal prosecution for , pending against him before said court on com- plaint of Mr. C, or to abide and fultill any decree, order, or judgment of court relative thereto. Witness our hands and seals at C, , 18 — . [Signed, sealed, approved, and filed like replevin bond No. 4.J 55. Schedule of bail's property. [Rules 71, 72.] United States of America against R. To the United States consular court at C. : I, B., of, &c., who offer myself as bail for E., a prisoner charged with the offense of before said court, solemnly swear that I am the sole and unconditional owner and possessor of all the unincumbered personal property named in the following schedule, worth at least dollars. [Schedule, date, signature, oath, and certificate like 'So. 31. J 56. Surrender of prisoner by bail. [Rule 74.] United States of America against E. To the United States consular court at G. : B., of, &c., a citizen of the United States, asks leave to surrender R., of, &c., a citizen of the United States, charged with the offense of before said court, whose bail he became , 18 — . (Signed) B. Filed, petition granted, and prisoner committed. [L. s.] T. Z., United States Consul. Execution for costs against informant, c&c. [Rule 77.] United States of America against E. United States consular court at 0. To the officer : Sir: Mr. C, of, &c., having filed a complaint or information under oath in this court, , 18—, against Mr. E., of, &c., a citizen of the United States, charging him with the offense of , and Mr. E. hav- ing beeu tried and honorably acquitted by me, and Mr. C.'s complaint or information being, in my opinion, groundless and vexatious, origin- ating m corrupt or vindictive motives, I have awarded judgment against Mr. C. ill favor of Mr. E. for dollars and cents, costs, in United States silver money, dated , 18—. You are therefore re- quired l&c, like common execution, No. 38]. JUDICIAL EXTEATEREITORIAL RIGHTS. 129 58. Usual oath of witness. [Rule 79.] You solemuly swear on the Holy Evangelists of Almighty God that the evidence you shall give in the case now on trial (before the consul) shall be the truth, the whole truth, and nothing but the truth. So help you God. 59. Oath of person examined by consul. You solemnly swear that you will truly answer all questions pro- pounded to you by the consul or his order. So help you God. 60. Oath to affidavit. You solemnly swear that the foregoing by yoii subscribed is true. So help yon God. 61. Interpreter's oath. [Rule 94.] You solemnly swear that you will faithfully and impartially interpret and translate whatever shall be submitted to you verbally or in writing by the consul or his order upon this trial. So help you God. 62. Associate's oath. [Rule 104.] You solemnly swear that jou will impartially discharge the duties of associate in this trial before the United States consular court at 0. So help you God. 63. Commitment for contempt. [Rule 105.] United States of America against E. United States consular court at C. To the fifficer : Sir: In the name of the United States, forthwith commit Mr. E., of, &c., to jaU lor (21) hours and collect of him $ (50) fine for his contempt of this court and of the United States of America, committed to-day in my presence in court (at the United States consulate) by [state the substance of his acts]. And if Mr. E. does not on demand pay said flue and the costs, taxed at $ , with your legal fees, you will im- prison him for 30 days more, for all which this shall be your sufficient warrant. Given [&c., like Xo. 38]. S. Mis. 89 9 130 JUDICIAL EXTRATERRITORIAL RIGHTS. 64. Judgment on criminal proceeding. United States of America against E. United States consular conrt at . Having lieard and tried the foregoing (complaint) or information filed by Mr. C. , 18—, I find Mr. K. guilty of the offense of , wheiewith he is charged, having at C , in Turkey, on , 18 — , unlawfully [state the substance of the offense proved] and I adjudge and sentence him therefor to imprisonment and hard labor for from this day, in the prison for American convicts in Turkey at Con- stantinople, and that he be confined at hard labor in the at S., until removed to Constantinople. [L. g.] Y. Z., United States Consul. Concurred in. A., Associate. S., Associate. 65. Warrant of commitment on sentence. United States of America against R. United States consular court at C. To the officer and to the Tieeper of the American prison : In the name of the United States of America, forthwith commit Mr. R., of C, a citizen of the United States, to the prison for American con- victs in Turkey at Constantinople, and safely keep him confined at hard labor for from the day of — '- , 18 — , in execution of the sentence of this court against him of that date, for the offense of , of which he stands convicted. For all which this shall be your sufficient warrant. [Given, &c., like No. 38.J 66. Communication to foreign consulate. [Rule 109.] Consular court of the United States of America at C, , 18—. To the honorable consulate of at C. : I have the honor to transmit the inclosed petition [or other paper! filed in this court (requesting that it may receive early attention). I have the honor to assure you of my high respect and regard. Your obedient servant, Y. Z., United States Consul. JUDICIAL EXTRATEREITORIAL EIGHTS. 131 67. Petition of American citizen against foreign defendant. P., American citizen against D., subject of . To the consular court of the United States at C: P., of C, a citizen of the United States, represents that Mr. D., of O., subject of , is indebted to hiin (piasters), according to the accompanying account, payment whereof has been demanded and Avith- held. P., therefore, asks that two attested copies of this petition and account be communicated to the consulate of at 0., and that said D. may be compelled forthwith to pay him said amount, interest, costs, and expenses occasioned by his delinquency. And P. is ready to com- ply with any order of this court or of the consulate of at 0. C, ,18-. (Signed) P. United States Constjlae Court at C, , 18—. Piled. ' Y. Z., United States Consul. 68. Commission to commissioners. [Bule 111.] P., subject of ■ , against D., American citizen. To Messrs. C, ofB., citizen of the United States, 0., of C, subject of , and M., subject of ; Gentlemen : You having been duly nominated, and being approved by me, as members of a mixed commission upon the petition of Mr. P., of, &c., against Mr. D., of, &c., dated , 18—, filed in the consulate , and transmitted to this court by copy, are hereby commissioned with full power to hear, and a majority of you to decide, the case. Mr. C. is appointed your chairman and will preside at all your sessions, his presence being 'essential to your proceedings, which will be conducted as nearly as may be as in suits tried in this court. You will give due notice to each party of the time and place of each of your sessions, and you will proceed notwithstanding the absence of either without good cause. You will patiently |&c., like Commission to Eeferees, No. 12]. 69. Officer'' s return of service on execution. P. against D. To the United States consular court at G. : I have to-day served the within execution on Mr. D. at C, by [State accurately the mode of service, giving a concise account of your pro- ceedings and their results]. [If the execution has been paid or settled, be careful to add :] And I accordingly return the execution fully satisfied, with all my fees. I If only a part has been paid, say :] And I accordingly return the exe- cution satisfied in part, to wit, the amount of dollars and cents, 18 — . ^ ^^ ' O., Officer. [Add a detailed account of your fees and disbursements.] 132 JUDICIAL EXTRATERRITORIAL RIGHTS. 70. Officer^ s return of execution unserved. P. against D. To the United States consular court at C. : Being unable to find the person or property of Mr. D., I return the within execution which I received for service, , 18 — , wholly un- satisfied. C, , 18—. O., Officer. 71. Oficer's return of service on warrant. United States of America against E. / To the United States consular court at G. : I have to day arrested Mr. E., at 0., and now have him before the court as directed. 0., , 18-. [ A.dd detailed account of your fees and disbursements.] TABLE OF 008TS AND FEES. CdxjET Pees. Piling petition $1 00 Piling answer 50 Communication of any paper through dragoman 1 00 Communication of any paper through court 50 Setting down case for hearing, including notices 1 00 Hearing fee, including judgment — In cases under $100 2 00 In cases from $100 to $1,000 5 00 In cases above $1,000 8 00 In cases seeking judicial relief, but not money . 5 00 Execution .'. 1 00 Commissions to referees, commissioners, &c . . . . . l 00 Summons for witness 50 Administering oath in court 25 Piling any paper 25 Copy of any paper 50 And if exceeding 250 words, for each 100 words 20 Certificate 50 Commission on money or valuables deposited, 2 per cent. Warrant 50 Searching records, ordinarily \ _ 50 Eecognizance, or discharging 50 Approving bond, or other paper 25 Eecording marriage 1 00 JUDICIAL EXTRATERRITORIAL RIGHTS. 133 Certificate of marriage $1 00 Eecording birtli - - - 25 Official travel, each mile 10 (Also all actual certified expenses.) Adjournment fee 25 Any decree or order 25 Interpreter, each day 2 50 Attendance of dragoman on Turkish tribunal, or elsewhere, each day, from $2.50 to 5 CO Piling agreement to settle Ko fee. Registration of citizen No fee. Eecording death No fee. Seamen, in civil cases, at discretion of consul, to pay No fee. Any other fees as in United States courts. COSTS FOR PREVAILING PARTY. A general fee in each case, of - . $5 00 In cases above $500, 1 per cent, on the amount recovered (if defendant prevails, on amount sued for). Necessary travel, each mile .... 10 Necessary attendance at court, each day 2 00 All necessary court and witness fees, &c., actually paid out. FOE MARSHAL OE OFFICBE. Service of execution 1 00 Also, on the first $100 collected, a commission of 5 per cent. ; on the second $100, 4 per cent.; on the third, 3 per cent.; on the fourth, 2 per cent.; and beyond $400, 1 per cent. Civil arrest . - 1 00 Arrest on criminal warrant 1 00 Bringing up or remanding prisoner 50 Service of any other paper 50 Official travel, each mile 10 Also any reasonable sum actually and necessarily paid to aid or for expenses. Other services as in United States courts. MISCELLANBOITS. Associates on consular trial, each day 3 00 Assignees in bankruptcy, each public meeting 3 00 Surveyors 5 00 Eeferees and commissioners, $3 for each day, or the fee customary at consulates of other nations. Official travel of the foregoing officials, each mile 10 134 JUDICIAL EXTRATERRITORIAL RIGHTS. APPENDIX IX. REGULATIONS IN FORCE IN THE CONSULAR COURTS OF THE UNITED STATES IN JAPAN. Regulations for the consular courts of the United States of America in Japan, 1870. Legation op the United States op America in Japan, November 16, 1870. Notice is IiL'reby given that the within regulations are in force from this date. [U. S. LEGATION SEAL.] 0. E. DE LOl^G, Minister Resident. REGULATIONS POE THE CONSULAR COURTS OP THE UNITED STATES OP AMERICA IN JAPAN. In pursuance of section 5 of the act of Congress approved June 22, 1860, entitled "An act to carry into effect certain provisions in the treaties between the United States, Cliina, Japan, Siam, Persia, and other countries, giving certain judicial powers to ministers and consuls, or other functionaries of the United States in those countries, or for other purposes," I, 0. E. De Long, minister resident of the United States to the empire of Japan, do hereby decree the following rules and regulations, which shall have the force of law in the consular courts of Japan. 1. Every citizen of the United States, residing within the limits of the ports open to foreign trade in the empire of Japan, is required to be enrolled in the consular register ; and shall apply in person at the con- sulate, within thirty days after the publication of notice of this decree. Every American citizen who may arrive within the limits of a port, save and except one who may be enrolled on the muster-roll of an American vessel, shall apply within ten days at the consulate to be en- rolled. Any American citizen neglecting to be so enrolled will not be entitled to claim the protection or intervention of the authorities, unless he can furnish a valid reason for not doing so, and shall be subject to a fine of ten dollars. 2. In all cases when an applicant to be enrolled cannot furnish a passport or other legal proof of his citizenship, he shall make an afiQda- vit in writing that he is a citizen of the United States, which shall be filed by the consul, and the consul may also require other and further proof of the fact before enrolling him. CIVIL PROCEEDINGS. 1. All civil actions in courts of the United States in Japan must be commenced by a complaint or petition in writing, verified by the oath of the party, his agent or attorney, before the judge of such court. 2. There shall be but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs. In such action, the party complaining shall be knowii as the plaintiff, and the adverse party as the defendant. JUDICIAL EXTRATEREITOBIAL EIGHTS. 135 3. Every action shall be prosecuted in the name of the real party in in- terest, except as otherwise provided in this decree. 4. In case of an assignment of a thing in action the action by the as- signed shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange transferred in good faith, and upon good consideration before due. 5. When a married woman is a party, her husband shall be joined with her, except when the action concerns her separate property, or when the action is between herself and her husband, when she may sue or be sued alone. 6. When an infant is a party, he shall appear by guardian, who may be appointed by the court, if none has already been appointed at the time. 7. All persons having an interest in the subject of the action may be joined as plaintiffs ; and any person who has or claims to have an in- terest in the controversy adverse to the plaintiiJ", or who is a necessary party to a.complete determination or settlement of the question involved therein, may be made a defendant. 8. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments may all or any of them be included in the same action, at the option of the plaintiff. 9. An action shall not abate, by the death or other disability of a party, or by a transfer of any interest therein, if the cause of action sur- ■ vive or continue ; but, in case of the death or disability of a party, the action may be continued by or against his representative or successor in interest, or the court may allow the person to whom the transfer is made to be substituted in the action. 10. Actions shall be brought and may be tried in the x^ort or city wherein one or more of the parties to the action resides, or wherein the cause of controversj' accrued, subjectto the power of the court to change the place of trial, when the convenience of witnesses and the ends of justice would be promoted thereby, or when, from any cause, the judge is disqualified from acting in the action. 11. The complaint shall be at once filed by the court, with a specifica- tion of the day, month, and year when the same was received for filing; and at any time within one year thereafter summons may be issued thereon as desired by the plaintiff. The summons shall be signed by the court, directed to the defendant, and issued under the seal of the court. It shall state the parties to the action, the court in which it is brought, the general nature of the action, and require the defendant to appear and answer the complaint, within the time mentioned in the next section, after the service of summons, exclusive of the day of service; or that a judgment by default will be taken against him according to the prayer of the complaint, stating the sum of money or other relief de- manded in the complaint ; but the court, in all cases when the default of one or all of the defendants is entered, shall require proof to be made in support of the plaintiff's cause of action, and shall only allow a judg- ment for such relief as the evidence offered shows the plaintiff to be en- titled to. 12. The time in which the summons shall require the defendant to answer the complaint shall be as follows : 1st. If served on the defendant in the port or city wherein the action is brought, within three days. 2d. If elsewhere within the empire of Japan, within twenty days; or, 136 JUDICIAL EXTRATERRITORIAL RIGHTS. 3d. If without said empire, within forty days. The court may for good cause shown, at any time within six months from the date of entry of any judgment by default, vacate, and set the same aside. 13. The summons shall be served by the marshal to whom it is di- rected, or by some person specially deputed by him, or by the court; and it' shall be returned, with the written ccrtiticate of such person, showing where, when, and upon whom it was served. If the defendant can be found, service shall be made by delivering to him a copy thereof. If the suit be against a corporation, by delivery of a copy to the presi- dent, secretary, or other managing agent thereof. If against a minor, by delivery of a copy to such minor, and also to his father, mother, or other guardian, if he have such, residing in the empire. And if against a person judicially declared to be of unsound mind, and for whom a guardian has been appointed, by delivery of a copy to such guardian ; j)rovided, that, when the person on whom service is to be made resides out of the empire of Japan, or has departed therefrom, or cannot after due diligence be found therein, or conceals himself to avoid the service of summons, and such facts be made to appear to the satisfaction of the court, service may be made by publication of the summons in some newspaper, if there be one, published at the port or the city wherein the action is brought; but if there be none, in a newspaper published the nearest to said port, for such length of time, and in such manner as the court may direct; not less, however, than once a week for the period of three weeks. Proof of service of summons so made shall be by 'the affidavit of the printer or publisher of such newspaper. The volun- tary appearance of the defendant shall in all cases be deemed equiva- lent to a personal service upon him of the summons, and a person shall be deemed to ajppear when he answers or demurs to the complaint in writing, or flies a written and verified statement in the action confessing plaintiff's right of action, or some portion theieof, and consenting that judgment for such amount be entered. 14. The pleadings on the part of the plaintiff shall be limited to a complaint or petition, and a demurrer to the defendant's answer; and on the part of the defendant, to a demurrer and answer to plaintift''8 complaint; provided, however, that the defendant may in his answer claim affirmative relief against the plaintiff", and all matters contained in the defendant's answer shall be deemed to be denied by the plaintiff" unless specially admitted by him. The pleadings shall concisely state the cause of action or defense, with a prayer for the relief asked for, and all answers, except demurrers raising issues of law alone, shall be verified as the complaint and petition are required to be. All pleadings shall be filed by the court, with a note of the day, month, and year, and if a defendant in his answer prefer a cross demand, or other afftrmative re- lief against the plaintiff, the plaintiff shall be allowed, if he require it, the same length of time in which to prepare for the trial of the cause as that which the defendant was allowed for answering in the case after service of the summons upon him. 15. A pleading may be demurred to if upon its face it «hows that the court has no jurisdiction over either of the parties, or the cause of ac- tion ; or that the plaintiff' has not the legal capacity to sue, or that there is a defect of parties, or an improper joinder of several causes of ac- tion, or that no cause of action or defense is stated in the pleading. The demurrer must distinctly state the grounds upon which it is based, and in case a demurrer to a pleading is sustained, the court shall in all cases allow the party against whom the judgment on demurrer is ren- dered a reasonable length of time in which to amend, serve, and file his JUDICIAL EXTRATERRITORIAL RIGHTS. 137 amended pleadings. All material allegations contained in the com- plaint, and not denied speciiically in the answer thereto, shall be con- sidered as admitted. 16. The cross-demand mentioned in section fourteen shall be one ex- isting in favor of the defendant or plaintiff, and against a plaintiff or defendant between whom a several judgment might be had in the ac- tion, and arising out of one of the following causes of action : 1st. A cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff's claim, or de- fendant's defense, or connected with ihe subject of the action. 2d. In an action arising upon a contract, any other cause of action arising also upon contract and existing at the time of the commence- ment of the action. 17. It shall not be necessary for a party to set forth in a pleading the items of the account therein alleged, but he shall deliver to the adverse party, within three days after demand thereof, in writing, a copy of the account, or he may be precluded from giving evidence thereof. 18. The plaintiff may unite several causes of action in the same com- plaint, when they all arise out of — 1st. Contracts express or implied. 2d. Claims to cover specific real property, with or without damages for waste or detention thereof, and the rents and profits of the same. 3d. Claims to cover specific personal property, with or without dam- ages for the detention thereof. 4th. Injuries to character, person, or to property ; but the causes of action so united shall all belong to one only ot these causes of action, and shall affect all of the parties to the action, and not require different places of trial, and be distinctly and separately stated. 19. The court may in furtherance of justice allow amendments to pleadings by adding or striking out the name of a party, or by correct- ing a mistake in the name of a party, or any other mistake ; it may also enlarge the time for filing an answer or demurrer, or a demurrer to an answer, or relieve a party from a judgment obtained against him by fraud, or through his mistake, inadvertence, surprise, or excusable neg- lect. 20. If the defendant appears and answers, the court having both parties before it, shall, before proceeding further, encourage a settle- ment by mutual agreement or by submission of the case to referees agreed on by the parties ; a finding by a majority of whom shall decide the case, and be entered as a judgment by the court, subject to appeal or motion for a new trial, as in cases of other judgments, and upon similar grounds. 21. On application of either party and on advance of the fees, any American citizen residing in the empire of Japan may be compelled to attend as a witness upon any court in the empire, and may be compelled to bring with him, and produce in such court, all necessary books, papers, &c., in his possession or under his control. 22. An order to arrest the defendant in a civil action may be made by the court in which the action is brought, or is pending, whenever it shall be made to appear to the satisfaction of the court, by an affidavit in writing, that the defendant is about to depart from the empire with the intent to defraud his creditors ; or that the defendant has, while acting in either an official, fiduciary, or professional character, embezzled or fraudulently misapplied, or converted to his own use, moneys or property of his principal ; or when the action is to recover the possession of personal property, when the property or any portion thereof has been 138 JUDICIAL EXTRATERRITORIAL RIGHTS. concealed, removed, or disposed of so that it cannot be found, or taken pos- session of by the marshal ; or when the defendant has been guilty of a fraud, in contracting the debt or incurring the obligation for which the action is brought; or in concealing or in disposing of the property, forthe taking, detention, orconversion of which the action is brought ; or when the defendant has removed or disposed of his property or is about to do so, with intent to defraud his creditors. Before making the order, the court shall require the plaintiff to enter into an undertaking, with two sureties, citizens of the United States, and residents of the empire of Japan, in a sum of not less than five hundred dollars, conditioned to pay the defendant such cost and damage as he may sustain by reason of the arrest if judgment be in his favor, not exceeding the amount mentioned in the bond. The sureties shall justify on the bond, by affi- davit showing that they are American citizens, residents of the empire, and worth the sum mentioned in the undertaking, which bond shall be at once filed by the court. 23. The order may be made at any time after the summons is issued; it shall be directed to the marshal, and shall direct him to arrest the defendant, and to hold him to bail in a specified sum, and return the order within a time specified to the court that issued it. A copy of the affidavit and order of arrest shall be delivered to the marshal, who, upon arresting the defendant, shall deliver unto him a copy of each ; and shall execute the order by arresting the defendant, and holding him in custody until he shall be discharged according to law. 24. The defendant at any time before execution shall be discharged from arrest, either upon giving bail in the amount stated in the order of arrest, with two sureties, citizens of the United States, who shall jus- tify as such on said bond, and to the further effect that they are residents of the emi^ire of Japan, and worth respectively the amount stated in the order ; conditioned that the defendant will at all times render himself amenable to the process of the court, during the pendency of the action, and to the execution of the judgment therein ; or that he will pay the plaintiff any judgment that may he recovered in said action; or the de- fendant may be discharged from arrest by depositing with the court the amount of money mentioned in the order of arrest. 25. In an action brought to recover specific personal property, if the plaintiff make and file with the court, at any time before the defendant appears and answers in the action, an affidavit showing that he, the plaintiff, is the owner or entitled to the possession of the property (par- ticularly describing it), that the property is unlawfully detained by the defendant, the value thereof, the cause of the detention to the best of his knowledge, and that the same has not been taken or seized by process issued out of any court, he shall be entitled to claim the deli\ery to him- self of such property as hereinafter provided. 26. The plaintiff or his attorney may, by indorsement in writing on such affidavit, require the marshal to deliver the property therein men- tioned to him, and it shall be the duty of the marshal to whom the same is directed, upon receipt of the affidavit and notice, with a sufficient un- dertaking executed by the plaintiff with two or more sufficient sureties, to be approved by the marshal, to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit, for the prosecution of the action, for the return of the property to the de- fendant, if return thereof be adjudged, andfor the payment to him of such sum as may for any cause be recovered against the plaintiff, the marshal shall forthwith take the property into his possession, if he find it in the possession of the defendant, or his agent, and he shall also without dc- JtJmciAL EXTRATEKHITOKIAL EIGHTS. 139 lay serve on the defendant a copy of the affidavit, notice, and under- taking, by delivering the same to him personally if he can he found, but if he cannot be found, by leaving the same at his usual or last place of residence. 27. At any time before the delivery of the property to the plaintiff, the defendant may require the return thereof, upon giving to the mar- shal a written undertaking executed by two or more sufficient sureties, to be approved by the marshal, to the effect that they are bound in dou- ble the value of the property as stated in the affidavit of the plaintiff", for the delivery thereof to the plaintiff, if such delivery be adjudged ; and for the payment to him of such sum as may for any cause be recov- ered against the defendant. If a return of the property be not so re- quired within three days after the service of the notice on the defend- ant and the taking of the property, it shall be delivered to the plain- tiff", unless it be claimed by some third person, in which case the mar- shal must at once notify the plaintiff of such clnim ; and unless the plaintiff, within two days thereafter, give to the marshal an undertak- ing, with two sufficient sureties in double the value of the property so claimed as stated in the affidavit, conditioned to save him, the marshal, harmless against any cost or damages he may be put to by said claim- ant, if he holds the same or delivers it to the plaintiff, he, the marshal, may surrender such property to the said claimant. 28. In all cases, sureties, to be sufficient on auy undertakiug, must, by affidavit attached to such undertaking, affirm on oath that they are citi- zens of the United States, residents of the empire of Jajjau, and worth respectively the sum for which they therein bind themselves in property situated in said empire, not exempt from execution, and ovt.T and above all of their just debts and legal liabilities. INJUNCTION. 29. An injunction is a writ or order, requiring a person to refrain from a particular act. This order or writ may be granted by the court in which an action is brought, when it shall appear that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act com- plained of, or when it shall appear that the commission or continuance of some act dnringthe litigation would produce great or irreparable in- jury to the plaintiff, or when it shall appear that the defendant is do- ing, or theatens, or is about to do, or is procuring or suffering to be done some act in violation of the plaintiffs rights, respecting the subject of the action, and tending to render the judgment ineffectual. 30. The injunction may be granted at the time of issuing the sum- mons, or at any time afterward, before judgment is rendered in the ac- tion ; before issuing which, however, the court shall require (except when the people of the United States are a party plaintiff) a written un- dertaking on the part of the plaintiff, with two or more sufficient secu- rities, to the eff'ect that the plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto.- 31. The party against whom an injunction is grauted may, upon notice to the opposite party, move the court that it be dissolved or modified, and upon the hearing the court may consider theapi)lication solely upon the pleadings on file, or may allow the parties respectively to file affi- davits ; and if it satisfactorily appears that there is not sufficient ground 140 JUDICIAL EXTRATERRITOEIAL RIGHTS. for the injunction it shall be dissolved, or it may be modified if it appears that the extent of the writ granted is too great. ATTACHMENT. 32. The plaintiff at the time of the issuance of summons, or at any time afterward, may have the property of the defendant attached as se- curity for the satisfaction of anyjudgtnent that may be recovered, unless the defendant give security to pay such judgment as hereinafter pro- vided, in the following cases : 1st. In an action upon a contract, express or implied, for the direct payment of money, which contract is not secured by a mortgage, lien, or pledge upon real or personal property, or, if so secured, that such se- curity has been rendered nugatory by the act of the defendant. 2d. In an action upon a contract, express or implied, against a defend- ant not residing in this empire. 33. The court shall issue the wi it of attachment upon receiving an afifldavit, by or on behalf of the plaintiff', which shall be filed, showing — 1st. That the defendant is indebted to the plaintiff (specifying the amount of snch indebtedness over and above all legal setoifs as counter- claims) upon a contract, expressed or implied, for the direct payment of money, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or personal property; or, 2d. That the defendant is indebted to the plaintiff (specifying the amount) over and above all legal set-offs or counter-claims, and that the defendant is a non-resident of this empire ; and, 3d. That the sum for which the attachment is asked is an actual, bona fide, existing debt, due and owing from the defendant to the plaintiff. 34. Before issuing the writ the court shall require a written under- taking on the part of the plaintiff, in a sum not less than one-half of nor exceeding the amount claimed by the plaintiff', with suflBcient sure- ties, to the effect that the defendant recover judgment, the plaintiff -will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in said undertaking. 35. The writ shall be directed to the marshal of the consulate within the jurisdiction of which the property of such defendant may be, and shall require him to attach and safely keep all the property of such de- fendant within said consular jurisdiction, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff''s demand (the amount of which shall be stated as in the complaint in the action), unless the defendant give him security by the undertaking of at least two sufiicient sureties, in an amount sufficient to satisfy such demand, besides costs, or in an amount equal to the value of the property which has been or is about to be attached, in which case, to take such under- taking, several writs may be issued at the same time, to different mar- shals of different consulates. 36. The rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profit thereon, and all debts due such defendant, and all other property in this empire of such defendant, not exempt from execution, may be attached, and, if judgment be recovered, be sold to satisfy the judgment and execution. 37. The marshal to whom the writ is directed and delivered shall ex- ecute the same without delay, and if the undertaking mentioned in sec- tion 35 be not given, as follows: 1st. Eeal property, or any interest in or right of possession thereto, of JUDICIAL EXTRATERRITORIAL RIGHTS. 141 which the defendant may be the owner and in the possession, shall be attached by leaving a copy of the writ with the occupant thereof, or, if there be no occupant, by posting a copy of the writ in a conspicuous place thereon, and filing a copy, together with a description of the property attached, with the United States consul at that port. If the same shall not be in the possession of the defendant, but in that of some other person, the same shall be attached by leaving with such person, or his agent, a copy of the writ, and a uotice that such real property (giving a description thereof), and any interest therein, belonging to the defendant is attached pursuant to such writ, and posting a copy of said writ and notice in a conspicuous place on said property, and flling a copy of such notice and writ with the United States consul for that jurisdiction. 2d. Personal property capable of manual delivery shall be attached by taking it into custody. 3d. Stock or shares, or interest in stock or shares of any corporation or company, shall be attached by leaving with the president, secretary, cashier, or other managing agent thereof, a copy of the writ, and a no- tice stating that the stock or interest of the defendant is attached in pursuance of such writ. 4th. Debts and credits, and other personal property not capable of manual delivery, shall be attached by leaving with the person owing such debts, or having in his possession, or under his control, such credits, or other personal property, or with his agent, a copy of the writ, and a notice that the debts owing by him to the defendant, or the credits and other personal property in his possession or under his control, belonging to the defendant, are attached in ])ursuance of such writ. 38. Upon receiving information in writing from the plaintiff, or his attorney, that any person has in his possession or under his control any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the marshal shall serve upon such person a copy of the writ, and a notice that such credits or other property or debts, as the case may be, are attached in pursuance of such writ. 39. All persons having in their possession or under their control any credits or other personal property belonging to the defendant, or owing any debts to the defendant nt the time of service upon them of a copy of "the writ and notice, as provided in the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the marshal, liable to the plaintiff tor the amount of such cred- its, property, or debts until the attachment be discharged, or any judg- ment recovered by him be satisfied. 40. Any person (a citizen of the United States) owing debts to the defendant, or having in his possession or under his control any credits or other personal property belonging to the defendant, maybe required to attend before the court, and be examined on oath respecting the same. The defendant may also be required to attend, for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery to be delivered to the marshal on such terms as may be just, having reference to any liens thereon or claims against the same ; and a memorandum to be given of all other personal property containing the amount and the descri[)tion thereof. 41. The marshal shall make a full inventory of the property attached and return the same with the writ. To enable him to make such return as to debts and credits attached, he shall request, at the time of service, the party owing the debt or having the credit to give him a memoran- 142 JUDICIAL EXTRATERRITORIAL EIGHTS. dum stating the amount and description of each, and if .such memoran- dum be refused, lie shall return the fact of the refusal with the writ. The party refusing to give the memorandum (if a citizen of the United States) may be required to pay the costs of any proceedings taken for the purpose of obtaining information respecting the amounts and de- scription of such debt or credit. 42. If any property attached be perishable the marshal may sell the same ia the manner in which such property is sold on execution. The proceeds and other propertj' attached by him shall be retained by him to answer another judgment that may be recovered in the action unless sooner subjected to execution upon anotlier judgment recovered previous to the issuing of the attachment. Debts and credits attached may be collected by him if the same can be done without suit. The marshal's receipt shall be a sufiBcient discharge for the amount paid. 43. If any personal property attached be claimed by a third person as his property, the marshal shall notify the plaintiff, or his attorney, of the amount, value, and nature thereof, and by whom claimed, and if within two days after such notice is given the plaintiff fail to indem- nify the marshal by giving him a good and sufficient bond in double the value thereof, with two sufficient securities, securing him against any cost or loss that he may be put to by holding the same as the property of the defendant, he may release the same to the said claimant, reciting what he has done relative thereto in his return upon the original writ. 44. If the plaintiff recovers a judgment, the marshal shall satisfy the same out of the property attached by him which has not been deliv- ered to the defendant or a claimant, as hereinbefore provided, or sub- jected to execution on another judgment recovered xjrevions to the issuing of the attachment, if it be sufficient for that purpose — 1st. By paying to the plaintiff the proceeds of all sales of perishable property sold by him, or of any debts or credits collected by hira, or so much as shall be necessary to satisfy the judgment. 2d. If any balance remain due and an execution shall have been is- sued on the judgment, he shall sell, under the execution, so much of the property, real or personal, as may be necessary to satisfy the bal- ance, if enough for that purpose remains in his hands. Notices of the sale shall be given, and the sale conducted as in other cases of sales on execution. 45. If, after selling all the property attached by him remaining in his hands, and applying the proceeds, together ^Yit'h the proceeds of any debts or credits collected by him, and deducting his fees, to the pay- ment of the judgment, any balance shall remain due, the marshal shall proceed to collect such balance as upon an execution in .other cases. Whenever the judgment shall have been paid, the marshal, upon rea- sonable demand, shall deliver over to the defendant the attached prop- erty remaining in his hands, and any proceeds of the property attached unapplied on the judgment. 46. If the execution remain unsatisfied, in whole or iu part, the plain- tiff' may prosecute any undertaking given by the defendant pursuant to this chapter of this decree; or he may proceed as in other cases upon the return of an execution. 47. If the defendant recover judgment against the plaintiff, any un- dertaking received in the action, all of the proceeds of sales, and money collected by the marshal, and all of the property attached re- maining ill the marshal's hands, shall be delivered to the defendant, or his agent, the order of attachment shall be discharged and the property released therefrom. JUDICIAL EXTRATERRITORIAL RIGHTS. 143 48. Whenever the defendant shall have api)eared in the action, he may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending for an order to discharge the attachment, wholly or in part, and iipon the execution of the undertaking mentioned in the next section such order may be gi'anted, releasing from the operation of the attachment any or all of the property attached ; and all of the property so released, and all of the proceeds of the sales thereof, shall be delivered to the defendant, upon the justification of the sureties on the undertaking, if required by the plaintiff. 49. Before granting such order the court shall require an undertaking on behalf of the defendant, by at least two sureties, American citizens residents of Japan, to the effect, that in case the plaintiff recover a judgment in the action, defendant will, on deiuand, redeliver such prop- erty attached, so released, to the proper ofBcer, to be applied to the payment of the judgment, and that in default thereof, the defendant and sureties will on demand pay to the plaintiff' the full value of the property so released. The couit granting such release shall fix the sum for which the undertaking shall be given, and if necessary, in fixing the sum, to know the value of the property released, the same may be ap- praised by three disinterested persons appointed for the i)uri)ose. The sureties may be required to justify before the court, and the property attached shall not be released from the attachment without their justi- fication, if the same be required. 50. The defendant may also at any time before the time for answering expires, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought that the attachment be discharged, on the ground that the writ was improperly or irregularly issued. 51. "When the motion is made upon affidavits on the part of the de- fendant, but not otherwise, the plaintiff may oppose the same by affida- vits, or other evidence, in addition to those on which the attachment was made. If upon such application it shall satisfactorily appear that the writ of attachment was improperly or irregularly issued, it shall be discharged. 52. The marshal shall return the writ of attachment with the sum- mons, if issued at the same time, unless the court otherwise direct ; in all other cases within twenty days of its issuance, and receipt by him, with a certificate of his proceedings indorsed thereon. DEPOSIT IN COVRT. 53. "When it is admitted by the pleading or examination of a party, that he has in his possession or under his control any money or other thing capable of delivery, which, being the subject of the litigation, is held by hijn as trustee for another party, or wMch belongs or is due to another party, the court may order the same, upon motion, to be depos- ited in court or delivered to such party upon such conditions as may be just, subject to the further direction of the court. 54. A receiver may be appointed by the court in which an action is pending : 1st. Beforejudgment, provisionally, on the application of either party, when he establishes a prima facie right to the property, or to an interest in the property, which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being hist or materially injured or impaired. 2d. After judgment, to dispose of the property according to the judg- ment, or to preserve it during the pendency of an appeal ; and, 144 JUDICIAL EXTRATERRITORIAL RIGHTS. 3d. lu such other oases as are in accordance with the practice of courts of equity jurisdiction. OF TRIAL AND JUDGMENT. 55. A judgment is the final determination of the rights of the parties in the action or proceeding. 56. Judgment may be given for or against one or more of several plaintiffs or defendants, and it may, when the justice of the case re- quires it, determine the ultimate rights of the parties, on each side, as between themselves. 57. In an action against several defendants, the court may, in its dis- cretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper. 58. The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue. 59. An action may l3e dismissed, or a judgment of nonsuit entered, in the following cases : Ist. By the plaintiff himself at any time before trial upon the pay- ment of costs, if a counterclaim has not been made; if a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant who may have his action thereon. 2d. By either party, upon the written consent of the other. 3d. By the coart when the plaintiff fails to ajjpear on the trial, and the defendant appears and asks for the dismissal. 4th. By the court when upon the trial, and before the final submission of the case, the plaintiff abandons it. 5th. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case. A judgment of dismissal shall in all cases be entered in the court's docket and judgment book. CO. In all other cases judgment shall be rendered upon the merits. 61. Judgment may be had if the defendant fail to answer the com- plaint, as follows : 1st. The court in any action, if no answer has been filed with it within the time specified in the summons, or within such further time as may have been granted upon application of the plaintiff, or his attorney, shall enter the default of the defendant, and immediately thereafter enter judgment; bat before entering judgment in the case, the court shall require proof to be made by the plaintiff', and shall enter such judgment only as the evidence under the pleadings will justify ; and when the amount demanded in such a ease exceeds the sum of five hundred dollars, assessors shall be selected and participate in the judgment as in other cases. 2d. In actions where the service of the summons was by publication, the plaintiff', upon the expiration of the time designated in the order of publication, may, upon proof of the publication, aiid that no answer has been filed, apply for judgment; and the court shall thereupon require proof to be made of the demand mentioned in the complaint ; and if the defendant be not a resident of the empire, shall require the plaintiff, or his agent, to be examined on oath, respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. JUDICIAL EXTRATERKITORIAL EIGHTS. 145 OF ISSUES AND THE MANNER OF THEIR DISPOSITION. 62. Au issue arises when a fact, or conclusiou of law, is maiutained by the one party and is controverted by the other, and are of two kinds, to wit, of law and of fact. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof An issue of fact arises when a material allegation in either the complaint or answer is controverted. , 63. Issues of law shall be tried and disposed of by the court, consti- tuted in the same manner as by law it should be constituted, to try and dispose of the issuable facts in the same case, and when there are issues of law and fact in the same case, the issues of law shall be first dis- posed of. 64. All causes shall be entered by the court upon its trial calendar, according to the date of issue and trial, and disposed of according to their respective order of precedence ; unless, for good cause, such dis- position shall be postponed by order of the court, in writing, entered in its journals, assigning the reason for delay. 65. A motion to postpone a trial, on the grounds of the absence of evi- dence, shall only be made upon affldavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it, setting forth specifically what acts such diligence consists of. The court may also require the moving party to state upon affidavit the evidence which he expects to obtain, and if the adverse party there- upon admits that such evidence would be given, and that it be consid- ered as actually given on the trial, or offered, and overruled as improper, the trial shall not be postponed. TRIAL WITH ASSESSORS. 66. When the action is called for trial by the court, assisted by asses- sors, the consul or his clerk shall prepare separate ballots containing the names of all the persons who have been nominated by such consul to serve as assessors, and whose nomination has been approved by the minister, and deposit them in a box. He shall then in the j)resence of the parties present draw from the box the number of tickets that the law enjoins that there shall be assessors to aid him upon the trial, and the persons whose names are thereon shall, by the marshal, be sum- moned forthwith to appear and act as such assessors. If the persons whose names are so drawn are temporarily absent from the port when the court is sitting, or if any such persons be too unwell to serve, to be proven by a physician's certificate to that eft'ect, or if the marshal re- turns upon the summons that such persons after diligent search cannot be found, or if such person be challenged, as hereinafter provided, and such challenge be allowed, the consul shall i)roceod in a similar manner to draw other names from the box, which persons whose names are so drawn the marshal shall proceed to summon in the same manner, until the court shall be organized as by law directed. 67. When the persons thus summoned shall appear they shall be sworn by the court to truthfully answer such questions as may be put to them in relation to their eligibility to serve as assessors in that action, after which they may be examined relative thereto by the respective parties or their counsel, and when the formation of the board of assess- ors is completed, they shall be sworn by the consul to well and truly try the said action then pending, wherein is plaintiff and is defendant, and a true judgment therein to render according to their best belief. S. Mis. 89 — -10 146 JUDICIAL EXTBATERHITOEIAL RIGHTS. 68. Either party to the action may challenge any person so called to act as an assessor, when it appears from his examination or otherwise. 1st. That he is related to any of the parties in the action by either the ties of consanguinity or afiBnity within the third degree. 2d. That he holds the relation of guardian or ward, master or servant, employer or clerk, or principal, or agent, to either party, or that he is a member of the family of either party, or a partner in business with either party, or that he is a surety on any undertaking in the action for either parfy. 3d. That he has served as an assessor, or been a witness on a previous trial between the same parties for the same cause of action, or that he has formed or expressed an unqualified opinion or belief as to the merits of the same; or, 4th. That he entertains such an enmity against, or bias to, either of the parties to the action as would influence his mind in forming his judg- ment in the action And when the challenge is sustained by sufficient evidence, the consul shall allow the same, discharge the person, and proceed to select another. 69. If, after the organization of the court with assessors, one of the assessors become sick, he shall be discharged, a new selection made, as hereinbefore provided, and the trial of t'he case shall commence anew, 70. A consular court sitting with assessors shall in all cases render a judgment in writing, signed by the consul and the assessors, if they agree with him in his judgment, but if either of them dissent, he shall express such dissent with his reasons therefor in writing, duly signed, and such dissenting opinion of said assessor shall, by the consul or his clerk, be filed and entered in the judgment book with the judgment in the case. 71. A minute book shall be kept by the consular court, in which shall be entered the opinions and judgment in each case immediately after being received, and placed on file ; also in said book shall be entered the names of the persons called as assessors, with a note of the- action of the consul relative thereto, on any challenge made by either party, the names of all witnesses called and sworn on the trial, and the date of the rendition of the judgment. EXCEPTIONS. 72. An exception is an objection taken at the trial to a decision upon a matter of law, at any time from the time of the calling of the action for trial until the time of rendition of the judgment therein, and may be made in writing at the time, or entered by the consul or the clerk of his court in the minute book thereof, but no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be mate- rial and affect the substantial rights of the parties. 73. If the court or the counsel in any case refuse to allow an exception to be filed, or fail or refuse to enter the same in the minute book of the court in accordance with the facts, any party aggrieved thereby may petition the ministerial court, or other appellate court having jurisdic- tion, on notice to the opposite party, for leave to prove the same, and shall have the right so to do, in such manner as said court may by rule direct. 74. No particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is neces- sary to ex])lain it, but no more, and as briefly as possible. 75. The final judgment of the court in an action shall be deemed in all cases to be excepted to by the party against whom the same is ren- dered, without any especial notice that an exception is taken thereto. JUDICIAL EXTEATEERITOEIAL EIGHTS. 147 NEW TRIALS. 7G. The judgment rendered in an action maj' be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes materially affecting the substantial rights of said party : 1st. Irregularity in the proceedings of the court, or any order of the court, or abuse of discretion, by which either party was prevented from having a fair trial. 2d. Accident or surprise which ordinary prudence could not have guarded against. 3d. l^ewlj' discovered evidence, material for the party makiug the application, which he could not, with reasonable diligence, havediscov- ered and produced at the trial. 4th. Excessive damages, appearing to have been given under the influence of passion or prejiidice. 5th. Insufficiency of the evidence to justify the judgment or other decision, or that it is against law. 6th. Error in law occurring at the trial, and excepted to by the party making the application. 77. When the application is made for a cause mentioned in the first, second, and third subdivisions of the last section, it shall be made upon affidavit; for any other cause it shall be made upon a statement, pre- pared as provided in the next section. 78. The party intending to move for a new trial shall give written notice of the same as follows : When the action has been tried by a consul, sitting with assessors, within five days after the rendition of the judgment; and within two days after judgment when tried by the con- sul alone. The notice shall designate generally the grounds upon which the motion will be made. Within five days after giving such notice, or within such further time, not exceeding twenty days, as the court may by order grant, the said party shall file with the court the affidavit or statement required by the last section. If no affidavit or statement be filed within five days after the notice, or within such further time as the parties may agree upon, or the court may by order grant, the right to move for a new trial shall be deemed waived. When the notice desig- nates as the ground upon which the motion will ba made, the insuffi- ciency of the evidence to justify the judgment, or other decision, the statement shall specify the particular errors upon which the i)arty will rely. When the notice designates as the ground of the motion errors in iaw, occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made, the statement may be disre- garded. The statement shall contain so much of the evidence, or refer- ence thereto, as may be necessary to explain the particular points thus specified, and no more. Such statement, when not agreed to by the parties, shall be settled by the jndge of the court upon notice. When agreed to, it shall be accompanied by the certificate of parties, or their attorneys, that the same has been agreed upon, and is correct. When settled by the judge, the same shall be accompanied with his certificate that the same has been allowed by him, and is correct. On the argu- ment, reference may also be made to the pleadings, depositions, and documentary evidence on file and the minutes of the court. If the ap- plication be made upon affidavits filed, the adverse party may use counter affidavits on the hearing. Any counter affidavits shall be filed with the court, one day at least before the hearing. The affidavits, and counter affidavits, or the statement thus used in connection with such 148 JUDICIAL EXTBATERKITORIAL RIGHTS, pleadings, depositions, and minutes of the court as are read or referred to on the hearing, shall constitute, without further statement, the papers, to be used on any appeal that may properly be made from the order granting or refusing the new trial. Such affidavits, depositions, and such portion of the minutes of the court as are referred to, may, to be designated, be indorsed by the judge of the court, as having been read on the hearing of the motion, and referred to in his certificate. The application for a new trial shall be heard by the court at the earliest practicable period after the filing of the affidavits or statement; and the decision of the court thereon shall be in writing, stating the grounds upon which the same is granted or refused. 79. The judgment of the court shall be entered within twenty-four hours after the trial is concluded, unless the court order the case to be reserved for argument or further consideration, or grant a stay of pro- ceedings. 80. If a counter claim established at the trial exceeds the plaintift's demand so established, judgment for the defendant shall be given for the excess ; or if it appears that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly. 81. In an action to recover the ijossession of personal property, judg- ment for the plaintiff may be for the possession, or the value thereof, in case a delivery cannot be had ; and damages for the detention. If the property has been delivered to the plaintiif, and the defendant claim a return thereof, judgment for the defendant maybe for the return of the property or the value thereof, in case a return cannot be had, and dam- ages for taking and withholding the same. 82. The court shall keep among its records a book for the entry of judgments, to be called the judgment book, in which such judgment shall be entered, and shall specify clearly the relief granted, or other determination of the action. 83. If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. 84. Immediately after entering the judgment, the court shall have the following papers attached together and filed, which shall constitute the judgment roll; 1st. In case the complaint be not answered by any defendant, the sum- mons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. 2d. In all other cases the summons, pleadings, findings, or opinion of the court, or any of its assessors ; all bills of exception taken and filed in said action; copies of orders sustaining or overruling demurrers; a copy of the judgment, and copies of any orders relating to a change of parties. 85. The court shall keep a book to be called the docket book, with each page divided into eight columns, and headed as follows : judgment debtors, judgment creditors, judgment, time of entry, when entered in judgment book, appeals when taken, judgment of appellate court, satis- faction of judgment when entered. The names of the defendants shall be entered in the book in alphabetical order. 86. The docket book shall be open at all times during office hours for the inspection of the public, without charge. 87. Satisfaction of a judgment may be entered in the docket book upon an execution returned satisfied, or upon an acknowledgment of satisfac- tion filed with the court by the judgment creditor, or within one year JUDICIAL EXTRATERRITORIAL RIGHTS. 149 after the judgment was rendered I)y the attornej''of record of the party, unless a revocation of his authority be previously tiled. Whenever a judgment shall be satisfied in fact, otherwise than upon an excution, it shall be the duty of the party, or his attorney, to gi^'e such acknowl- edgment, and upon motion the court may compel it; or may order the entry of satisfaction to be made without it. THE EXEOXTTION. 88. The party in whose favor judgment is given may, at any time within iive years after the entry thereof, have issued for its enforcement a writ of execution, as hereinafter provided. 89. The writ shall be issued in tlie name of the people of the United States of America, sealed with the seal of the court, and shall be di- rected to the marshal, and shall intelligibly refer to the judgment, stating the court where the judgment-roll is filed; and if it be for money, the amount thereof, and the amount actually due thereon, and shall require the marshal substantially as follows : 1st. If it be against the property of the judgment debtor, it shall re- quire the marshal to satisfy the judgment, with interest, out of the per- sonal property of such debtor; and if sufficient personal property can- not be found, then out of his real property. 2d. If it be against real or personal property in the hands of the per- sonal representatives, heirs, devisees, legatees, or tenants of real prop- erty, or trustees, it shall require the marshal to satisfy the judgment, with interest, out of such property. 3d. If it be against the person of the judgment debtor, it shall re- quire the marshal to arrest such debtor, and commit him to jail until he pay the judgment, with interest, or be discharged according to law. 4th. If it be for the delivery of real or personal property, it shall re- quire the marshal to delivei' the possession of the same, particulaily describing it, to the party entitled thereto; and may, at the same time, require the marshal to satisfy any costs, damages, rents, or profits re- covered by the same judgment out of the personal property of the per- son against whom it was rendered.; and the value of the property to be specified therein, if a delivery thereof cannot be had; and if suffi- cient personal property cannot be found, then out of the real property, as provided in the iirst subdivision of this section. 90. When a writ of execution is issued on a judgment recovered against two or more persons in an action upon a joint contract, in which all of the defendants were not served with summons, it shall direct the marshal t-o satisfy the judgment out of the joint property of all of the defendants, and the individual property only of the defendants who were served. 91. The execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the marshal, to the court where the judgment-roll is filed. 92. When the judgment requires the payment of money, or the de- livery of real or personal property, the same may be enforced by a writ of execution ; when it requires the performance of any other act, a cer- tified copy of the judgment may be served on the party against whom the same is rendered, or upon the person or officer required thereby or by law to obey the same. Obedience thereto may be enforcpd by the court ; and, after a final judgment of partition, the court shall have power to enforce a severance of the possession. 93. In all cases, other than for the recovery of money, the judgment 150 JUDICIAL EXTRATERRITORIAL RIGHTS. may be enforced after five years from the date of its entry by an order of tlie court upon application therefor. 94. ISTotwithstanding the death of a party, after the judgment, execu- tion thereon may be issued ; in case of the death of the plaintiff, the same as if he were living, upon the application of his executor, or ad- ministrator, or successor in interest, by the court in which the judg- ment was rendered or exists ; and in case of the decease of the defend- dant, if the judgment be for the recovery of real or personal property, execution may be issued and executed against the property recovered in the same manner, and with the same effect, as if he were still living. 95 When the execution is against the property of the judgment debtor, it may be issued to the mai shal of any consulate in the empire; when it requires the delivery of real or personal property, it shall be issued to the marshal of the consulate where the property or some part thereof is situated. Execution may be issued at the same time to dif- ferent consulates. 96. All goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by decree or law from execution, and all property and rights of property seized and held under attachment in the same action, shall be liable to execution. Shares and interests in any corporation or company, and debts and credits on all other projierty, both real aud personal, or any interest in either real or personal propertj', and all other property not capable of manual delivery, may be attached, on execution, in like man- ner as upon writs of attachments. Until a levy, property shall not be affected by execution or attachment. 97. If the property levied on be claimed by a third person as his property, the marshal shall notify the peisou in whose favor the execu- tion is issued of such claim, by whom it was preferred, and what the value of the same is ; and, as a condition precedent to holding the same under execution, he may require the execution creditor to execute to him a good and sufficient bond of indemnity, in double the value of the said property, conditioned to save him (the marshal) harmless if he shall hold and sell the said property under the execution. And if said indemnity bond shall not be given within two days after service of such notice, the marshal may release the said property to the claimant, mak- ing return of the notice of claim, aud his proceedings thereunder, to the court that issued the execution. 98. The following property shall be exempt from execution, to wit : First, chairs, tables, desks, and books, to the value of one hundred dol- lars, belonging to the judgment debtor; second, necessary household, kitchen, and table furniture belonging to the judgment debtor, includ- ing stove, stove-pipe, and stove farniture; wearing apparel, beds, bed- ding, aud bedsteads ; and provisions actually provided for individual or family use, sufficient for one month, not exceeding in value the sum of six hundred dollars ; and third, tools or implements of a mechanic or artisan necessary to carry on his trade; the instruments or chests of a surgeon, physician, surveyor, and dentist, necessary to the exercise of their profession, with their scientific and professional libraries; the law libraries of attorneys and counselors; and the libraries of ministers of the Gospel. 99. The marshal shall execute the writ against the property of the judgment debtor by levying on a sufficient amount of property, if there be sufficient, collecting or selling the things in action, and selling the other property, aud paying to the plaintiff, or his attorne\-, so much of the proceeds as will satisfy the judgment, or depositing the JUDICIAL EXTRATEERITORIAL EIGHTS. 151 amount with the court; any excess in the proceeds over the judgment and the marshal's fees shall be returned to the judgment debtor. "Where there is more property of the judgment debtor than is sufficient to satisfy the judgment and the marshal's fees, within view of the marshal, he shall levy, on such part only of the property as the judgment, debtor may indicate; provided that the judgment debtor be present at and in- dicate at the time of the levy such part. 100. Before the sale of property on execution, notice thereof shall be given as follows : 1st. In case of perishable property, by posting written or printed notices of the time and place of sale in public places of the port or city where the sale is to take place, for such a time as may be deemed reason- able, considering the chfiracter and condition of the property. 2d. In case of other personal property, by posting a similar notice in public places in the port or city when the same is to take place, and publishing a copy of the same in some newspaper published in the place (if there be one publislied there) not less than five nor more than ten days successively. 3d. In case of real property, by posting a similar notice (particularly describing the property), for twenty days successively, in public places of the port or city where the property is situated, and publishing a copy thereof once a week, for the same period, in some newspaper published at the port or city, if there be one. 101. An ofQcer selhng without the notice prescribed by the last sec- tion shall forfeit $500 to the aggrieved party, in addition to his actual damages; and the willful taking down or defacing of such a notice be- fore the sale, or satisfaction of the judgment, shall be a misdemeanor, punishable as such by either flue or imprisonment, or both. 102. All sales of property under execution shall be made at auction to the highest bidder, and shall be made between the hours of ten in the morning and five in the afternoon; and, after sufficient property has been sold to satisfy the execution, no more shall be sold. Neither the of&cer holding the execution nor his deputy shall become a purchaser, or be interested in any purchase at such sale. When the sale is of per- sonal property, capable of manual delivery, it shall be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price; and when the sale is of real property, and con- sisting of several known lots or parcels, they shall be sold separately ; or, when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion shall thus be sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, where such property consists of several known lots or parcels, or of articles which can be sold to advantage separately; and the marshal shall be bound to follow such direction. 103. If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the offlcer may again sell the property, at any time, to the highest bidder; and if any loss be occa- sioned thereby, the ofiBLcers may sue such person (if a citizen of the United States') and recover the amount of such loss, with costs, in the consular court of the port or city where such sale was held ; and the same proceeding may be had against any American citizen who, being a subsequent purchaser, shall refuse to pay the price bidden by him for an article struck off to him ; and the ofiQcer may, in his discretion, there after reject the bid of auy person so refusing. 104. The two preceding sections shall not be construed to make the 152 JUDICIAL EXTBATEKEITORIAL BIGHTS. officer liable for any more than the amount bid by the second or subse- quent purchaser, and the amount collected from the purchaser refusing to pay. 105. When the purchaser of any personiil property capable of manual delivery shall pay the purchase money, the officer making the sale shall deliver to the purchaser the property, and, if desired, shall execute and deliver to him a certificate of the sale and payment. Such certificate shall convey to the purchaser all the right, title, and interest which the debtor had in and to such property on the day the execution was levied. 106. When the purchaser of any personal property not capable of manual delivery shall pay the purchase money, the officer making the sale shall execute and deliver to the purchaser a certificate of sale and payment. Such certificate shall convey to the purchaser all right, title, and interest which the debtor had in and to such property on the day the execution was levied. 107. Upon a sale of real i)roperty, the purchaser shall be substituted to and acquire all the right, title, interest, and claim of the judgment debtor thereto; and, when the estate is less than a leasehold of two years, the sale shall be absolute. In all other cases the property shall be subject to redemption, as provided in this chapter. The officer shall give to the purchaser a certificate of sale, containing — 1st. A particular description of the real property sold ; 2d. The price bid for each distinct lot or parcel; 3d. The whole price paid ; and 4th. When subject to redemption, it shall be so stated. 108. Property sold subject to redemption, as provided in the last sec- tion, or any i^art sold separately, may be redeemed, in the manner hereinafter provided, by the following persons, or their successors iti Interest: 1st. The judgment debtor, or his successor in interest, in the whole or any part of the property. 2d. A creditor having a lien, by judgment, or mortgage on the prop- erty sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdi- vision of this section are termed redemptioners. 109. The judgment debtor or redemjjtioner may redeem the property from the purchaser, within six months after the sale, on paying the purchaser the amount of his purchase, with twelve per cent, thereon in addition, together with the amount of any land rental which the pur- chaser may have paid thereon to the Japanese government after the purchase, and interest on such amount; and if the purchaser be also a creditor having a jmor lien to that of the redemption, other than the judgment under which such purchase was made, the amount of such lien, and interest thereon. 110. If the property be so redeemed by a redemptioner, either the judgment debtor or other redemptioner may, within sixty days after the last redemption, again redeem it from the last redemptioner', on paying the sum paid on such last redemption, with four per cent, thereon in addition, and the amount of any land rental which the said last re- demptioner may have paid thereon to the Japanese government, with interest on such amount ; as also the amount of any liens held by the last said redemptioner, prior to his own, with interest, provided that the judgment under which the property was sold need not be so paid as a lien. The property may again, and as often as the debtor or a redemp- tioner is so disposed, be redeemed from any previous redemptioner JUDICIAL EXTRATERRITORIAL RIGHTS. 153 within sixty days after the last redemption, with four per cent, thereon in addition; and the amount of any government land rent which the last previous redemptioner paid after the redemption by him, with in- terest thereon; and the amount of any liens other than the judgment, under which the property was sold, held by the last said redemptioner previous to his own, with interest. Notice of redemption shnll be given to the marshal. If no redemption be made within six months after the sale, the purchaser or his assignee shall be entitled to a conveyance; or if so redeemed, whenever sixty days have elapsed, and no redemption has been made, and notice thereof given, the time for redemption shall have expired, and the last redemptioner or his iissignee shall be entitled to a marshal's deed. If the debtor redeem at any time before the time for redemption expires, the effect of the sale shall be terminated, and he be restored to his estate. The payments mentioned in this and the last preceding sections may be made to the purchaser or to the' redemp- tioner, as the case may be, or for him to the officer M'ho made the sale. 111. A redemptioner shall produce to the officer or person from whom he seeks to redeem, and served with his notice to the marshal — 1. A copy of the mortgage, or other lien, upon which he claims the right to redeem ; 2. A copy of any assignment necessary to establish his claim, verified by his own or a subscribing witness's affidavit; and 3. His or his agent's affidavit, showing the amount then actually due on the lien. 112. Until the expiration of the time allowed for redemption, the court may restrain the commission of waste, by an order to that effect, upon notice. But it shall not be deemed waste for the person in possession of the property at the time of the sale, or entitled to possession afterward, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or in any other reasonable manner. 113. The purchaser from the time of the sale until a" redemption, and a redemptioner from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof. 114. If the purchaser of real property sold on execution, or his suc- cessor in interest, be evicteil therefrom, in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, from the judgment creditor. If the purchaser of propertj^ at a marshal's sale or his successor in interest fail to recover possession, in consequence of ir- regularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof shall, on petition of such party in interest, or his attorney, revive the original judgment for the amount paid by such purchaser at the sale, with interest thereon, from the time of payment, at the same rate that the original judgment bore. When so revived, the said judgment shall have the same effect as an original judgment of the said court of that date, and benring interest as aforesaid, and any other or after- acquired property, rents, issues, or profits of the said debtor shall be liable to levy and sale under execution in satisfaction of such debt; provided that no property of such debtor sold bona fide before the filing of such petition shall be subject to the lien of said judgment. The said judg- ment shall be revived in the name of the original party plaintiff, for the use of said petitioner, the party in interest. 154 JUDICIAL EXTEATEEEITOEIA.L EIGHTS. PEOOEBDINGS SUPPLEMENTARY TO EXECUTION. 115. When an execution against property of the judgment debtor, or any one of several debtors in the same judgment, issued to the marshal of the port or city at which he resides, or if he does not reside in this empire, to the marshal of the consulate where the judgment-roll is filed, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from the consular court requiring such debtor to appear and answer concerning his property before such court, at a time and place specified in the order; but no judgment debtor shall be required to attend before a court out of the port or city in which he resides when proceedings are taken under the provisions of this chapter. 116. After the issuiug of an execution against the property, and by proof by affldavit, to the satisfaction of the court, that any judgment debtor has property which he unjustly refuses to apply toward the sat- isfaction of the judgment, such court may, by an order, require said debtor to appear at a specified time and place before such court, to an- swer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment as are provided upon the return of an exe- cution. If it be made to appear to the court by affidavit that there is danger of the judgment debtor absconding, the court may order the marshal to arrest the debtor, and bring him before the court; and upon his appearance, he may be ordered to enter into an undertaking, with sufficient security, that he will attend from time to time before the court, as shall be directed, during the pendency of the proceeding, and until final determination thereof will not dispose of any portion of his property not exempt from execution. In default of such undertaking, he may be committed to prison. 117. After the issuing of an execution against property, any person indebted to the judgment debtor may pay to the marshal the amount of his debt, or so much thereof as may be necessary to satisfy the execu- tion ; and the marshal's receipt shall be a sufficient discharge for the amount so paid. 118. After the issuing or return of an execution against property of a judgment debtor, or one of several debtors in the same judgment, upon proof by affidavit to the satisfaction of the court that any person or corporation has property of such judgment debtor, or is indebted to him in an amount exceeding fifty dollars, the court may by order require such person, or a proper oflacer of such corporation (American citizens), to appear at a specified time before the court to answer concerning the same. 119. Witnesses may be required to appear and testify before the court in any proceeding under this chapter in the same manner as upon the trial of an issue. 120. The court may order any i)roperty of the judgment debtor not exempt from execution, in the hands of such debtor or other person, or due to the judgment debtor, to be applied to the salisfactlon of the jvidgment. 121. If any person, party, or witness disobey an order of the court, properly made in the proceedings before him under this chapter, he may be punished by the court for a contempt. POEECLOSING MORTGAGES. 122. There shall be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real or personal JUDICIAL EXTRATERRITORIAL EIGHTS. 155 property; which action shall be in accordance with the provisions of this chapter. In actions for the foreclosure of mortgages, the court shall have power by its, judgment to direct a sale of the encumbered property (or so much thereof as may be necessary), and the application of the proceeds of the sale to tlie payment of the costs of the court and the expenses of the sale, and the amount due to the plaintiff; and if it appear from the marshal's return that the proceeds are insufftcient, and a balance still remains due, judgment shall then be docketed for such balance against the defendant or defendants personally liable for the debt, and shall then become a lien on the real estate of such judgment debtor, as in other cases on wliich execution may issue. All persons having liens or mortgages registered in the consulate of the port or city where the property is situated, shall be joined in the action, and their respective rights thereto shall all be determined and settled in one action. 123. If there be surplus money remaining after the amount due has been paid on the mortgage, lien, or incumbrance, with costs, the court may secure the same to be paid to the person entitled to it, and in the mean time may direct it to be deposited in court. 124. If the debt for which the mortgage, lien, or incumbrance is held be not all due, so soon as sufficient property has been sold to pay the amount due, with costs, the sale shall cease; and afterward as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a re- bate of interest when such rebate is proper. APPEALS. 125. A judgment or order in a civil action, except when expressly made final by a statute of the United States, may be waived, as pre- scribed in this chapter, and not otherwise. The party appealing shall be known as the appellant, and the adverse party as the respondent. 126. An appeal may be taken from a final judgment in an action or special proceeding commenced in the court in which the same is rendered (when the same is not made final by law) within one year after the rendi- tion of judgment. 2d. Prom an order granting or refusing a new trial; from an order granting or dissolving, or modifying an injunction; from an order dis- solving or refusing to dissolve an attachment ; from any special order made after final jiidgment, within sixty days after such order is made and entered in the minutes of the court. 127. The appeal shall be made by filing with the court by whom the judgment or order appealed from was rendered, a notice stating the appeal from the same or some specific part thereof, and serving a coiiy of the notice upon the adverse party or his attorney. 128. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, prepare such statement, which shall state specifically the particular errors or grounds upon which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and no more; and shall serve a copy thereof upon the adverse party. The respondent may, within five days thereafter, prepare amendments to the statement and serve a copy on the appellant. The statement and amendments which may be served 156 JUDICIAL EXTRATERRITOEIAL RIGHTS. shall be presented to tlie judge who tried or heard the case, upon notice of two days to the respondent; and a true statement shall thereupon be settled by the judge. If no amendments are served, the statement may be presented to the judge for settlement without notice to the re- spondent. 129. If the party shall omit to make a statement within the time above limited, he stall be deemed to have waived his right thereto ; and when a statement is made, and the parties shall omit within the several times above limited, the one party to propose amendments, the other to notify an appearance before the judge, they shall, respectively, be deemed, the former to have agreed to the statement as prepared, and the latter to have agreed to the amendments as proposed; but the judge who heard the case shall, notwithstanding such admission or implied argument, have power to correct any misstatement of fact or of his rulings which such statement may contain. 130. The several periods of time above limited for preparing or filing a statement or amendments thereto may be enlarged, upon good cause shown by the judge before whom the case was tried. 131. The statement, when settled by the judge, shall be signed by him, with his certificate that the same has been allowed and is correct; when the statement is agreed upon by the parties, they or their attor- neys shall sign the same, with their certificate that it has been agreed upon by them and is correct. In either case, when settled or agreed upon, it shall be filed with the court. 132. A copy of the statement shall be annexed to a copy of so much of the judgment-roll as shall be included in the transcript on appeal, if the appeal be from a judgment; if the appeal be from an order, to a copy of such order. 133. The provisions of the last five preceding sections shall not apply to appeals taken from an order made upon affidavit filed, but such affi- davit shall be annexed to the order in place of the statement mentioned in those sections. 134. Upon an appeal from a judgment the court may review any im- mediate order involving the merits and necessarily affecting the judg- ment. 135. Upon an appeal from a judgment or order the appellate court may revise, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice 6f appeal, and as to any or all of the parties, and may set aside or confirm or modify any or all of the pro- ceedings subsequent to or dependent upon such judgment or order ; and may, if necessary or proper, order a new trial. When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order; and when it appears to the appellate court that the appeal was made for delay, it may add to the costs such damages as may be just. 136. On an appeal from a final judgment, the appellant shall furnish the court with a transcript of the notice of appeal, the pleadings, or amended pleading, as the case may be, which form the issues tried in the case, the judgment, and such other parts of the judgment-roll, and no more, as are necessary to present or explain the points relied on, and the statement (if there be one) certified by the attorneys of the parties to the appeal, or by the court below, to be correct. On an appeal from an order, the appellant shall furnish the court with a copy of notice of appeal, the judgment or order appealed from, and a copy of the papers used in the hearing of the court below, such copies to be certi- fied in like manner to be correct. If any written opinion be placed on JUDICIAL EXTRATEREITOEIAL RIGHTS. 157 tile in rendering the judgment or making the order in the court below, a copy shall be furnished. If the appellant fail to furnish the requisite ])apers, the appeal may be dismissed. 137. To render* an a])peal effectual for any purpose in any case, a ■written undertaking shall be executed, on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages, and costs which may be awarded against him on the appeal, not exceed- ing three hundred dollars ; or that sum shall be deposited with the court where the judgment or order was entered, to abide the event of the ap- peal. Such undertaking shall be filed or such deposit made within five days after the notice of appeal is filed. 138. If the appeal be from a judgment or order directing the payment of money, it shall not stay the execution of the judgment or order, unless a written undertaking be executed, on the part of the appellant, by two or more sureties, citizens of the United States, and residents of this empire, to the effect that they are bound in double the amount named in the judgment or order, that if the judgment or order appealed from, or any part thereof, be affirmed, the appellant shall i)ay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order shall be affirmed (if affirmed only in part), and all damages and costs which shall be awarded against the appellant upon the appeal. 139. If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judg- ment or order shall not be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be en- tered into on the part of the appellant, with at least two sureties, and in such amount as the court may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal. 140. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by tlie appeal until the instrument is executeil and deposited with the court in which the judgment or order is entered, to abide the judgment of the appellate court. 141. If the judgment or order appealed from direct the sale or deliv- ery of the possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant, he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the prop- erty, from the time of the appeal until the delivery of the possession thereof pursuant to the -judgment or order, not exceeding a sum to be flved by the court from which the appeal is to be taken, and which shall be specified in said undertaking. When the judgment is for the sale of mortgaged premises and the- payment of a deficiency arising upon the sale, the undertaking shall also provide for the paymtTit of such defi- ciency. 142. Whenever an appeal is perfected, as provided in the preceding sections of this chapter relative to appeals, it shall stay all farther pro- ceedings in the court below, upon the judgment or order appealed from or upon the matters embraced therein ; and on appeal and filing an ap- peal bond on appeal from an order discharging an attachment, said at- tachment shall not be dissolved, but shall remain in full force until the cause be disposed of on appeal; but the court below may proceed upon 158 JUDICIAL EXTRATEERITORIAL RIGHTS, any other matter embraced in the action and not affected by the order appealed from, provided that an appeal shall not continue in force an attachment, unless an undertakin^r be executed and filed on the part of the appellant, by at least two sufficient sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attach- ment, in case the order of the court below be sustained, and unless also notice of the a.ppeal be given within five days after service of the notice of the entry of the order appealed from, and such appeal be perfected and the undertating mentioned in this section be filed within five days thereafter. The undertakings mentioned in this and the preceding sec- tion of this chapter relative to appeals may be in one instrument or several, at the option of the appellant. 143. An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affldavit of the sureties that they are each worth the amount specified therein, in property situated in the empire of Japan, over and above all of their just debts and legal liabilities, exclusive of property exempt from execution, except when the judgment exceeds the suin of three thousand dollars, and the undertaking is executed by more than two sureties, in which case they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. In all cases when an undertaking is required on appeal by the decree, a deposit in the court below of the amount of the judgment appealed from, and three hundred dollars in addition, shall be equiva- lent to filing the undertaking, and in all cases the undertaking or de- posit may be waived by the written consent of the respondent. 144. When the judgnient is rendered upon the appeal, it shall be cer- tified by the court or clerk of the court to which the appeal has been takeu, to the court with whom the judgment roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the court or clerk of the court with whom the roll is filed shall attach the certificate to the judgment roll and enter a minute of the judgment of the appellate court on the docket against the original entry. In cases of an appeal from an order, the court or its clerk shall enter at length in the records of the court the certificate received, and minute against the entry of the order appealed from a reference to the certificate, with a brief statement that such order has been affirmed, revised, or modified, as the case may be, by the appellate court upon appeal. MISOELLANBOtTS PROCEEDINGS. 145. When a judgment is recovered against one or more of several persons jointly indebted upon an obbgatiou as hereinbefore provided, those who were not originally served with summons and did not appear in the action, may be summoned to show cause why they should npt be bound by the judgment in the same manner as though they had been origiucilly served with summons. 146. The summons, as provided in the last section, shall describe the judgment and require the person summoned to show cause why he should not be bound by it, and shall be served in the same manner and made returnable within rhe same time as the orijjiual summons. It shall not be necessary to file a new complaint. 147. The summons shall be accompanied by an affidavit of the plain- tiff, his agent, representative or attorney, that the judgnient or some JUDICIAL EXTEATERRITOEIAL EIGHTS. 159 part thereof remains unsatiefled, and shall specify the amount due thereon. 148. Upon such summons the defendant may answer within the time specified therein, denying the judgment or setting up any defense which may have arisen subsequently, or he may deny his liability on the obli- gation upon which the judgment was recovered, except a discharge from such liabi lity by the statute of limitations. 149. If the defendant in his answer deny the judgment, or set up any defense which may have arisen subsequently, the summons, with the affidavit annexed, and the answer, shall constitute the written allega- tions m the case. If he denies his liability on the obligation upon which the judgment was recovered, a copy of the original comi^laint and judgment, the summons, with the affldavit annexed, and the answer, shall constitute the written allegations. 150. The issues may be tried as in other cases, but when the defend- ant denies in his answer any liability on the obligation upon which the judgment was rendered, if a judgment be rendered against him, it shall be for the amount remaining unsatisfied on such original judgment, with interest thereon. CONFESSION OF JUD&MENT WITHOUT ACTION. 151. A judgment by confession may be entered without action, either for money due, or to become due; or to^secure any person against con- tingent liability on behalf of the defendant ; or both in the manner pre- scribed by this chapter. 152. A statement in writing shall be made, signed by the defendant, and verified by his oath, to the following effect : 1st. It shall authorize the entry of judgment for a specified sum. 2d. If it be for money due, or to become due, it shall state concisely the facts out of which it arose, and shall show that the sum confessed therefor is justly due, or to become due. 3d. If it be for the purpose of securing the plaintiff against a contin- gent liability, it shall state concisely the facts constituting the liability, and shall show that the sum confessed therefor does not exceed the same. 153. The statement shall be filed with the court in which the judg- ment is to be entered, who shall indorse upon it and enter in the judg- ment book a judgment of such court for the amount confessed, with ten dollars costs. The statement and afiftdavit, with the judgment indorsed, shall therefore become the judgment roll. SUBMITTING A CONTROVERSY WITHOUT ACTION. 154. Parties to a question in difference, which might' be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which should have jurisdiction if an action had been brought. But it must appear by afQdavit that the controversy is real, and the proceedings in good faith, to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment thereon as if an action were pending. 155. Judgment shall be entered in the judgment book as in other cases, but without costs, for any proceeding prior to the trial. The case, the submission, and a copy of the judgment, shall constitute the judgment roll. 156. The judgment may be enforced in the same manner as if it had 160 JUDICIAL EXTRATERRITORIAL RIGHTS. been rendered in an action, and shall be in the same manner subject to appeal. OFFER TO COMPROMISE. 157. The defendant may, at anj- time before the trial or judgment, serve upon the plaintiff' an offer to allow judgment to be taken against him for the sum or projierty or to the effect therein specified. If the plaintiff accept the offer and give notice thereof within five days, he may file the summons, complaint, and offer with an afQdavit of notice of acceptance, and the court shall thereupon enter judgment accord- ingly. If the notice of acceptance be not given, the offer shall be deemed withdrawn, and shall not be given in evidence, and if the plain- tiff fail to obtain a more favorable ju(lgment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer. WITNESSES. 15S. A subpoena may require not only the attendance of the person to whom it is directed at a particular time and place to testify as a wit- ness, but may also require him to bring any books, documents, or other things under his control, to be used as evidence. Ko person shall be required to attend as a witness before any court or oflflcer out of the city or treaty port in which he resides, unless the distance be less than thirty miles from the city or port ot his residence to the place of trial. 159. To require attendance before a court, it shall be issued under the seal of the court before which the attendance is required. To re- quire attendance out of court before an officer authorized to administer oaths, or take testimony in any matter, it shall be issued by such per- son or officer, or by the judge of any United States court. To require attendance before a commissioner appointed to take testimony, or before any officer or officers empowered by the laws of the United States, or of other countries, to take testimony, it may be issued by any United States consul in places within their respective jurisdiction, with like power to enforce attendance, and, upon certificate of contumacy to said consular court, to i^unish contempt of their process, as such consular court could exercise, if the subpcena directed the attendance of the wit- ness before their courts, in a matter pending therein. 160. The service of a subpcena shall be made by showing the original, and delivering a copy to the witness personally, giving or offering to him at the same time, if demanded by him, the fees to which he is en- titled for travel to and from the place designated, and one day's attend- ance there. Such service may be made by any person, proof thereof to be made by the affidavit of the person serving it, or the written f.dmis- sion of the person served, except in cases when served by the marshal, who shall return in writing on the original his certificate of his pro- ceedings. 161. If a witness be concealed in a building or vessel of, or belonging to, or in the possession of, an American citizen, so as to prevent the service of a subpoena upon him, the court issuing the subpcena, on proof of the concealment and of the materiality of the witness, may order the marshal of the port to serve the subpoena, and he shall serve it accord- ingly, and for that purpose may break into such vessel or building wherein such witness is concealed. A person present in court may be required to testify in the same manner as if he were in attendance upon a subpoena issued by the court and served upon him. 162. It shall be the duty of a witness, duly served with a subpcena, JUDICIAL EXTEATEERITOEIAL RIGHTS. 161 to attend at the time appointed with any papers under his control re- quired by the subpoena, to answer all pertinent and legal questions, and, unless sooner discharged, to remain until the testimony is closed. 163. A witness shall answer questions legal and pertinent to the mat- ter in issue, though his answer may establish a claim against himself, but he need not give an answer whicli will have a tendency to subject him to punishment for a felony, nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be pre- sumed. But the witness shall answer as to the fact of his previous con- viction for felony. 164. Disobedience to a subpoena, or a refusal to be sworn, or to an- swer as a witness, or to subscribe an aflftdavit or deposition when re- quired, may be punished as a contempt by the court or officer issuing the subpoena, or requiring the witness to be sworn, and if the witness be a party, his complaint may be dismissed, or his answer may be stricken out. 165. In case of failure of a witness to attend, the court or" officer issu- ing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the marshal of the port or city to arrest the witness and bring him before the court or oflScer when re- quired. 166. If a witness whose evidence is desired is in confinement in any prison of the United States of America in Japan, the court or officer by whose judgment or order he is soconfln.ed, upon proof of his materiality as a witness, may, by order, direct him to be taken before the officer or court when his evidence is required to therein testify, or may direct that the evidence of the witness may be taken in the prison. 167. Every person who has in good faith been served with a subpoena to attend as a witness before a court or other person in a case, when the disobedience of a witness might be punished as a contempt, shall be exonerated from arrest in a civil action while going to the place of at- tendance, necessarily remaining therein, and returning therefrom. 168. A party to an action may take the evidence of an adverse party, or call such party as a witness, but shall not be concluded or estopped from disproving the statements given in evidence by him, but may rebut the same by other testimony. If an adverse party refuse to attend and testify at the trial, or to give his deposition before a trial, or upon a commission when required, his complaint or answer may be stricken out, and judgment be taken against him, and he may also be punished by the court as another witness for contempt. 169. An affidavit to be used before any court, judge, or officer of this empire may be taken before any court of the United States in this em- pire. An affidavit taken in the United States may be taken before any judge-or clerk of any court of record having a seal. An affidavit taken in a foreign country to be used in this empire, shall be taken before a minister, commissioner, secretary of legation, or consul of the United States in such foreign country. "When an affidavit is taken before a judge of a court in the United States, the genuineness of the signature of the judge, the existence of the couit, and the fact that such judge is a member thereof, shall be certified by the clerk of the court under the seal thereof. OF DEPOSITIONS TAKEN IN THIS EMPIRE. 170. The testimony of a witness in this empire may be taken by de])0- sition in an action, at any time after the service of a summons, or the S. Mis. 89 11 162 JUDICIAL EXTRATERRITORIAL RIGHTS. appearance of the defendant, and in a special proceeding after a question of fact has aiiseu therein, in the following cases: 1st. When the witness is a party to the action or proceeding, or a l)erson for whose immediate benefit the action or proceeding is prose- cuted or defended. 2d. When the witness resides out of the treaty port or city in which his testimony is to be used. 3d. When the witness is about to leave the treaty port or city where the action is to be tried, and will probably continue absent when the testimony is required. 4th. When the witness, otherwise liable to attend the trial, is never- theless too infirm to attend. 171. Either party may have the deposition taken of a witness in this empire before any United States consul or other United States judicial otficer in said empire, on serving on the adverse party previous notice of the time and place of examination, together with a copy of an af&- davit showing that the case is one mentioned in the last section. At an J' time within the forty days immediately after the service of summons by publication has been completed, and at any time thereafter, when the defendant has not appeared, the notice required by this section may be served on the judge of the court where the action is pending. Such notice shall be at least five days, and in addition, one day for every twenty-five miles of the distance of the place of examination from the residence of the person to whom the notice is given. 172. Either party may attend such examination and put such ques- tions, direct or cross, as may be proper. The deposition, when com- l)leted, shall be carefully read to the witness and corrected by hirii in any particular, if desired; it shall then be subscribed by the witness, certified by the officer taking the deposition, inclosed in an envelope, sealed, and directed to the court in which the action is pending, or to such person as the parties in writing may agree upon, and delivered to such court or person, or transmitted through the mail, or by some safe private opportunity; and, thereupon, such deposition may be used by either party upon the trial or other proceeding against any party giving or receiving the notice, subject to all legal exceptions. But if the par- ties attend at the examination, no objection to the form of an interroga- tory shall be made at the trial, unless the same was stated at the time of the examination. If the deposition be taken by reason of the absence or intended absence from the port or city, of the witness, or because he is too infirm to attend, proof shall be made at the trial that the witness continues absent, or infirm, to the best of deponent's knowledge or belief. The deposition thus taken may also be read in the case of the death of the witness. A deposition thus taken may be read in any stage of the same action or proceeding, by either party', and shall then be deemed the evidence of the party reading it. DEPOSITIONS TAKEN OUT OF THE EMPIRE. 173. The testimony of a witness out of this empire may be taken by deposition in an action at any time after service of the summons or the appearance of the defendant, and in a special proceeding, at any time after a question of fact h i s arisen therein. The deposition shall be'taken upon a commission issued from the court under the seal thereof, upon an order of the court or judge thereof, on the application of either party, upon five days' previous notice to the other. It shall be issued to a per- JUDICIAL EXTKATEEHITOEIAL RIGHTS. 163 SOU agreed upon betweeu the parties, or if they do not agree, to some officer selected by the officer granting the comraissiou. 174. Such proper interrogatories, direct and cross, as the respective parties may prepare, to be settled, if the parties disagree as to their form, by the court or officer gi'anting the order for the commission, or a day fixed in the order may be annexed to the commission, or when the parties agree to that mode, the examination may be without written interrogatories. 175. The commission shall authorize the commissioner to administer, an oath to the witness, and to take his deposition in answer to the inter- rogatories; or when the examination is to be without interrogatories, in respect to the question in dispute; and to certify and dispatch the depo- sition to the court sealed in an envelope, directed to the court or other person designated, or agreed upon. A trial or other proceeding shall not be postponed by reason of a commission not having been returned, except upon evidence satisfactory to the court that the testimony of the witness is necessary, and that proper diligence has been used to ob- tain it. ADMINISTEATION OF OATHS AND APFIEMATIONS. 176. Every court of the United States in the empire of Japan, and every clerk thereof and every officer authorized to take testimony or to decide upon evidence, in any proceeding, shall have power to admin- ister oaths or affirmations. 177. Wlien a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion, if there be any such : Provided, That any witness who desires it may, at his option, instead of taking an oath, make his solemn affirmation or declaration, by assenting when addressed in the following form : " You do solemnly afBrm that the evidence you shall give in this issue (or matter) pending between and shall be the truth, the whole truth, and nothing but the truth." Assent to this affirmation shall be made by the answer, " I do." A false affirmation or declaration shall be deemed perjury, equally with a false oath. INSPECTION OF DOCUMENTS AND "WEITINGS. 178. Any court in which an action is pending, or a judge thereof, may upon notice order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy of any book, document, or paper in his possession or under his control, containing evidence relating to the events of the action. If compliance with the order be refused, the court may exclude the book, document, or other paper from being given in evidence ; or if wanted as evidence by the party applying, may presume it to be such as he alleges it to be, and the court may also punish the party refusing for a contempt. This sec- tion shall not be construed to prevent a party from compelling another to produce books, papers, or documents, when he is examined as a wit- ness. 179. There shall be no evidence allowed of the contents of a writing, other than the writing itself, except in the following cases : 1st. When the original has been lost or destroyed, in which case proof of the loss or destruction shall first be made. 2d. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice. 164 JUDICIAL EXTRATERRITORIAL RIGHTS. 3d. When the original is a record or other document in the custody of a public officer of the United States. 4th. When the original is recorded, and a certified copy is made evi- dence by a law of the United States. 180. i'he party producing a writing as genuine which has been altered, or appears to have been altered after its execution, in a part material to the question in dispute, and such alteration is not noted on the writing, shall account for the appearance or alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made. If he do that, he may give the writing in evidence, but not otherwise. 181. The records and judicial proceedings of any court of the United States in this empire may be proved by the production of the original, or a copy thereof, certified by the court, under the seal of the court, to be a true copy of such record. 182. The records and judicial proceedings of the courts oLthe United States, or of any State or Territory thereof, maybe proved or admitted in the courts in this empire by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. 183. A judicial record of a foreign country may be proved by the pro- duction of a copy thereof, certified by the clerk, with the seal of the court annexed, if there be a clerk and seal, or by the legal keeper of the record, with the seal of his office annexed, if there be a seal, to be a true copy of such record, together with a certificate of a judge of the court that the person making the certificate is the clerk of the court, or the legal keeper of the record, and, in either case, that the signature is gen- unine and the certificate in due form ; and also together with the certifi- cate of the minister or commissioner of the United States, or of a con- sul of the United States, in such foreign country, that there is such a court, specifying generally the nature of its jurisdiction and verifying the signature of the judge and clerk, or other legal keeper of the record. 184. A copy of the judicial record of a foreign country shall also be admissible in evidence upon proofs — 1st. That the copy offered has been compared by the witness with the original and is an exact transcript of the whole of it; 2d. That such original was in the custody of the clerk of the court or other legal keeper of the same ; and 3d. That the copy is daly attested by a seal— which is proved to be the seal of the court where the record remains, if it be the record of a court— or if there be no such seal, or if it be hot a record of a court, by the signature of the legal keeper of the original. 185. Printed copies in volumes of statutes, codes, or other written laws enacted by the United States, or any State or Territory thereof, or for- eign governments, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such State, Ter- ritory, or government, shall be admitted by the courts and officers of this empire on all occasions as presumptive evidence of such la,ws. 186. A seal of a court or a public office, when required to any writ, or process, or proceeding, or to authenticate a copy of any record or docu- ment, may be impressed with wax, wafer, or any other substance, and then attached to the writ, process, or other proceeding, oi- to the copy of the record or document, or it may be impressed on the paper alone. JUDICIAL EXTRATEEEITOEIAL RIGHTS. 165 WRIT OP CERTIORARI. 187. A writ of certiorari, or writ of review, may be granted od appli- cation by any court of the United States in this empire ; the writ shall be granted in all cases when an inferior tribunal, board, or ofiBcer exer- cising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy. 188. The application shall be made on affidavit by the party bene- liciallj' interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. 189. The writ may be directed to the inferior tribunal, board, or to any person having the custody of the record or proceedings to be certi- fied. When directed to a tribunal, the judge thereof, or the clerk, if there be one, shall return the writ with the transcript required. 190. 'I'he writ shall command the party to whom it is directed to cer- tify fully to the court issuing the writ, at a specified time and place, and annex to the writ a transcript of the record and proceedings (describing or referring to them with sufficient certainty), that the same may be re- viewed by the court, and requiring the party in the mean time to desist from further proceedings in the matter to be reviewed. 191. If a stay of proceedings be not intended, the words requiring the stay shall be omitted froin the writ; these words may be omitted or in^ serted in the sound discretion of the court ; but, if omitted, the power of the inferior court or officer shall not be suspended, nor the proceed- ings be stayed. 192. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court. 193. The review upon this writ shall not be extended further than to determine whether the inferior tribunal, board, or officer, has regularly pursued the authority of such tribunal, board, or officer. 194. If the return of the writ be defective, the court may order a further return to be made. When a full return has been made the court shall proceed to hear the parties, or such of them as may attend for that pur- pose, and may thereupon give judgment either affirming or annulling or modifying the proceedings below. 195. A copy of the judgment, signed by the judge of the court or the clerk thereof, shall be transmitted to the inferior tribunal, board, or offi- cer, having the custody of the record or proceeiling certified up. 196. A copy of the judgment, signed by the judge or clerk, entered upon or attached to the writ and return, shall constitute the judgmeut roll. An appeal, when allowed by law, may be taken from the judg- ment in the same manner and upon the same terms as from a judgment in a civil action. WRIT OP MANDAMUS. 197. Writs of mandamus may be issued by any court of record of the United States in the empire of Japan to any inferior tribunal, corpora- tion, board, or person, to compel the performance of an act, which the law specially enjoins as a duty resulting from an office, trust, orstntion ; or to compel the admission of a party, to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person. This writ shall be issued in all cases, when there is not a plain, speedy, and adequate remedy at law in an ordinary course of procedure. It shall 166 JUDICIAL EXTRATERRITORIAL RIGHTS. be issued upon affidavit on the application of the party beneficially inter- ested. 198. The writ shall be either alternative or peremptory. The alter- native writ shall state generally thii allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed ; or to show cause before the court, at a specified time and place, why he has not done so. The peremptory writ shall be in a similar form ; excepting the words requiring the party to show cause why he has not done as commanded, which shall be omitted, and a re- turn day shall be inserted. 199. When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative wiit shall be issued first ; but if the application be upon due notice, and the writ be allowed, the peremptory may be issued in the first instance. The notice of the application when given shall be at least five days. The writ shall Jiot be granted by default. The case shall be heard by rhe court, whether the adverse party appear or not. 200. On the return of the alternative, or the day on which the appli- cation of the writ is noticed, or such further day as the court may allow, the party on whom th£ writ or notice shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action. , 201. On the return day of the writ, unless a postponement should be asked for au'l granted, the court shall proceed to try and determine the issues of law and fact raised in the case in the same manner as the trials of other civil actions are conducted. If judgment be given for the ap- plicant he may recover also such damages as by the evidence it appears he has sustained, together with costs ; and for such damages and costs an execution may issue, and a peremptory mandate shall be issued with- out delay. 202. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court. 203. When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, or board, or such person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned for a period not exceediug three moutlis, and may make any orders necessary and proper to the complete enforcement of the writ. If a fine be imposed upon a judge or consul, or other officer, who draws a salary from the United States Government, a certified copy of the order may be forwarded to the Secretary of the Treasury, 'and the amount thereof may be retained from the salary of such judge or officer. Such consul, judge, or officer, for his willful disobedience, shall also be deemed guilty of a misdemeanor in office. CONTEMPTS. 201. The following acts or omissions shall be deemed contempts: 1st. Disorderly, contemptuous, or insolent behavior toward the judge while holding court, or engaged in his official duties at chambers, or toward referees or arbitrators while sitting on a reference or arbitration, .TUDICIAL EXTEATEERITORIAL EIGHTS. 167 tending to interrupt the due course of the trial, reference, or arbitra- tion, or other judicial proceeding. 2d. A breach of the peace, boisterous conduct, or violent disturbance in presence of the court, or in its. immediate vicinity, tending to inter- rupt the due course of a trial or other judicial proceeding. 3d. Disobedience or resistance to any lawful writ, order, rule, or pro- cess issued by the court or judge at chambers. 4th. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness. 5th. Eescuing any person or property in the custody of any officer by virtue of an order or process of such a court or judge at chambers. 205. When a contempt is committed in the immediate view and pres- ence of the court or judge at chambers it may be punished summarily ; for which an order shall be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein described. When the contempt is not committed in the imme- diate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge, of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators. 206. When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged before the court to answer. The warrant may be made returnable forthwith, or at such time and place as the court may direct; it shall be directed to the marshal, who shall serve the same as directed, and return the warrant into court with his proceed- ings under it indorsed thereon. 207. When the person arrested has been brought up, or appeared, the court or judge shall proceed to investignte the charge and shall hear any answers which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time. 208. Upon the answer and evidence taken, the court, or judge, shall determine whether the person proceeded against is guilty of the con- tempt charged, and if it be adjudged that he is guilty of contempt a fine may be imposed on him not exceeding five hundred dollars, or he may be imprisoned not exceeding iive days, or both. 209. When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be impi'isoned imtil he ha^'e performed it, and in that case the act shall be specified in the warrant of commitment. 210. When the warrant of arrest has been returned served, if the per- son arrested do not appear on the return day, the court or judge may issue another warrant commanding his summary arrest and production, which shall at once be served by the marshal to whom it is directed, by his arresting and producing before the court, or judge, the person named. 211. Whenever by the provisions of this chapter an officer is required to keep a person arrested on a warrant of attachment in custody, and to bring him before ^ court or judge, the inability from illness or other- wise of the person to attend ?hall be a sufficient excuse for not bringing him up, and the officer shall not confine a person arrested upon the war- rant iu a prison, or otherwise restrain him of personal liberty, except so far as may be necessary to secure his personal attendance. 168 JUDICIAL EXTEATERRITOEIAL EIGHTS. MISCELLANEOUS PROVISIONS, 212. Every direction of a court or jadge, made or entered in writing, and not included in ajudgment, is denominated an order. An applica- tion for an order is a motion- 213. When a- written notice of a motion is necessary it shall be given if the court be held in the same port or city with both parties, five days before the time appointed for the hearing; otherwise, ten days; but the court Or judge may prescribe a longer or a shorter time. 214. When a notice of a motion is given, or an order to show cause is made, returnable before a judge or court, and at the time fixed for the motion, or on the return day of the order, the judge or court is unable then to hear the parties, the matter may be deferred for a reasonable length of time. 215. Written notices and other papers, when required to be served on the party or attorney, shall be served in the manner prescribed in the next three sections, where not otherwise provided; but nothing in this title shall be applicable to original or final process, or any proceedings, to bring a party into contempt. 216. The service may be personal, by delivery to the party or attor- ney on whom the service is required to be made, or it may be as follows : 1st. If upon an attorney, it may be made during his absence from his office by leading the notice or other papers with his clerk therein, or with a person having charge thereof, or, when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open so as to admit of such service, then by leaving them at the attor- ney's residence with some jierson of suitable age and discretion; and if Ms residence be not known, then by putting the same, inclosed in an en- velope, into the post-ofiice, directed to such attorney. 2d. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion, and if his residence be not known, by putting the same, inclosed in an en- velope, into the post-of&ce, directed to the party. 217. Service by mail may be made when the person making the serv- ice and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. 218. In case of service by mail, the notice or other papers shall be de-. posited in the post-office, addressed to the person on whom it is to be served at his place of residence, and the postage paid ; and in such case the term of service shall be increased one day for every twenty-five miles' distance between the place of deposit and the place'of address. 219. After appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings of which notice is required to be given. But when a defendant has not appeared, service of notice or pa- pers need not be made upon him unless he be imprisoned for want of bail. 220. When a plaintiff or a defendant who has appeared resides out of this empire, and has no attorney in the action or proceeding, the service may be made on the clerk of the court in which \he action is brought for him, if the court have a clerk, and if it has not, by leaving the same with the judge of the court. But in all cases when a party has an at- torney in the action or proceeding, the service of papers, when required, shall be upon the attorney instead of the party, except of subpoenas, writs and other process issued iu the suit, and of papers to bring him into contempt. JUDICIAL EXTRATERIilTOEIAL BIGHTS. 169 221. Successive actions may be maintained upon the same contract or transaction whenever, after the former action, a new cause of action arises therefrom. 222. Whenever two or more actions are pending at one time, between the same parties and in the same court, upon causes of action which might have been joined, the court may order the actions to be consoli- dated into one. 223. An action may be brought by one person against another for the purpose of determining an adverse claim which the latter makes against the former for money or property upon an alleged obligation ; and also, two or more persons for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as security. 224. The court shall keep among its records a register of action ; it shall enter therein the title of the action, with brief notes under it from time to time of all x)apers filed and proceedings had therein. 225. The time within which an act is to be done, as provided in these regulations, shall be computed by excluding the first day and including the last; if the last be Sunday it shall be excluded. When the act to be done relates to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the service of notices other than of appeal, or the preparation of statements, or of bills of exceptions, or of amendment thereto, the time allowed in these regulations may be ex- tended, for good cause shown, by the court in which the action is pend- ing or a judge thereof; but such extension shall not exceed thirty days beyond the time herein prescribed, without the consent of the adverse party. 226. An affidavit, notice, or other paper without the title of the action or proceeding in which it is made, or with a defective title, shall be as valid and effectual for any purpose as if duly entitled, if it intelligibly refute such action or proceeding. 227. When a cause of action has arisen in the United States of America, or in some foreign country, and by the laws thereof an action thereon cannot be maintained there against a person by reason of lapse of time, an action thereon shall not be maintained against him here. - MABEIAGE. 228. Each consul shall record all marriages solemnized by him in a book to be kept in his office for that special purpose. DIVOECB. 229. Divorces maybe granted from the bonds of matrimony, upon the following grounds: 3 St. Habitual drunkenness ; 2d, extreme cruelty ; 3d, willful desertion by one party of the other for a period of over two years; 4tb, failing willfully to supply the wife with the common necessaries of life, having the ability so to do, for a period of over two- years; 5th, adultery of either party, remaining uncondoned at the time the action is brought; and, 7th, conviction of either party of a felony. To entitle a party to maintain an action for a divorce in any of the United States courts in the empire of Japan, it must be alleged in the complain^, and proved at the trial, that the applicant, for (6) six months next preceding the time of commencing the action, has been, and still is an actual resident of Japan. In proceedings of this nature, the courts are authorized to 170 JUDICIAL EXTRATEEEITOEIAL RIGHTS. make aud enforce all suitable orders in relation to the care and disposi- tion of the children of the parties to the action and in relation to com- pelling the payment of alimony, either pendente lite or subsequent to the determination of the case; and also, to make suitable disposition of all common property of or belonging to the parties to the action. BIKTHS AND DEATHS. 230. The births and deaths of every American citizen within the limits of his jurisdiction shall likewise be kept recorded by each American consul. STBAMEBS, VESSELS, AND BOATS. 231. All Steamers, vessels, and boats, shall be liable — 1st. For services rendered on board, at the request of or on contract with their respective owners, masters, agents, or consignees. 2d. For supplies furnished for their use, at the request of their re- spective owners, masters, agents, or consignees. 3d. For materials furnished for their construction, repair, or eqipment. 4th. For su h wharfage, anchorage, and light dues, as may by subse- quent convention or treaty between Japan and the United States be allowed to be charged against them in this empire. 5th. For non-performance or mal -performance of any contract for the transportation of persons or property, made by their respective owners, masters, agents, or consignees. 6th. For injuries committed by them to person or property. The said several causes of action shall constitute liens upon all steam- ers, vessels, or boats, and have priority in their order herein enumerated, and shall have preference over all other demands : Provided, Such liens shall only continue in force for the period of one year from the time the cause of action occurred. 232. Actions for demands arising upon any of the grounds specified in the preceding section may be brought directly against such steamers, vessels, or boats. 233. The complaint shall designate the steamer, vessel, or boat by name, and shall be verified by the oath of the plaintiff', or some one on his behalf. 234. The summons attached to a certified copy of the complaint may be served on the master, mate, or any other person having charge of the steamer, vessel, or boat, or the owner thereof. 235. The plaintiff, at the time of issuing summons, or at any time after- ward, may have the steamer, vessel, or boat, against which the action is brought, attached, as security for the satisfaction of any judgment that may be recovered therein, as provided for attachments in other cases by this decree, and upon similar conditions. 236. The marshal to whom the writ is directed and delivered shall execute the same without delay, and shall, unless an undertaking to re- lease the attachment be given, attach and keep in his custody the steamer, vessel, or boat named therein, with its tackles, apparel, and furniture, until discharged by due course of law; but the marshal shall not be authorized by any sucli writ to interfere with the discharge of any mer- chandise on board of such steamer, vessel, or boat, nor with the removal of any trunks or other property of passengers, or of the captain, mate, seaman, steward, cook, or other person employed on board. 237. The owner, master, agent, or consignee of the steamer, vessel, or boat against which the action is brought may appear and answer or JUDICIAL EXTRATERRITORIAL RIGHTS. 171 plead to the action, and may except to the sufficiency of the sureties, on the undertaking filed on the behalf of the plaintiff, and may require sureties to justify, as in actions against individuals, upon bail or arrest. 238. All proceedings in action under the provisions of this chapter shall be conducted in the same manner as in actions against individuals, except as otherwise herein provided, and in all proceedings subsequent to the complaint, the steamer, vessel, or boat may be designated as de- fendant. 239. After the appearance to the action of the owner, master, agent, or consignee, the attachment may, on motion, be discharged in the same manner and on like terms and conditions as attachments in other cases, subject to the provisions of the second section following this. 240. If the attachment be not discharged, and a judgment be recov- ered in the action in favor of the plaintiff', and an execution be issued thereon, the marshal shall sell at public auction, after publication of notice of such sale for ten days, the steamer, vessel, or boat, with its tackle, apparel, and furniture, or such interest therein as may be neces- sary, and shall apply the proceeds of the sale as follows : 1st. When the action is brought for demands, other than the wages of mariners, boatmen, and others employed in the service of the steamer, vessel, or boat sold, to the payment of the amount of such wages, as specified in the execution. 2d. To the payment of the judgment and costs, including his fees; and, 3d. He shall pay any balance remaining to the owner, master, agent, or consignee who may have appeared in the action; or if there [be] no appearance, then into court, subject *to the claim of any party or par- ties legally entitled thereto. 241. Any mariner, boatman, or other person employed in the service of the steamer, vessel, or boat attached, who may wish to assert his claim for wages against the same (the attachments being issued for other demands than such wages), shall file an affidavit of his claim, set- ting forth the arfiount and the particular service rendered, with the clerk of the court, and thereafter no attachment shall be discharged upon filing an undertaking, unless the amount of such claim, or the amount determined as provided in the next section, be covered thereby, in addi- tion to the other requirements. And anj^ execution issued against such steamer, vessel, or boat, upon judgment recovered thereafter, shall di- rect the application of the proceeds of any sale, first, to the payment of the amount of such claims filed, or the amount determined as provided in the next section, which the clerk shall insert in the writ; and, second, to the payment of the judgment and costs, and marshal's fees, and shall direct the payment of any balanc ' to the owner, master, or consignee who may have appeared in the action ; but if no appearance be made by them therein it shall direct the deposit of the balance in court. 242. If the claim of the mariner, boatman, or other person filed with the court, or its clerk, as . provided in the last section, be not contested within five days after notice of the filing thereof by the owner, master, agent, or consignee of the steamer, vessel, or boat against which the claim is filed, it .shall be deemed to be admitted; but if contested, the court, or its clerk, shall indorse upon the affidavit thereof a statement that it is contested and the grounds of the contest, and the court shall, as soon as convenient thereafter, summarily hear and determine the same. ■ 243. The notice of the sale published by the marshal shall contain a 172 JUDICIAL EXTEATEKEITORIAL RIGHTS. statement of the measurement and tonnage of the steamer, vessel, or boat, and a general description of her condition. 244. From orders and judgments under this chapter an appeal may be taken by the owner, master, agent, or consignee on the same terms and conditions as appeals in actions against individuals. COSTS. 245. The measure and mode of compensation of attorneys and coun- sellors shall be left to the agreement, express or implied, of the parties, but there shall be allowed to the prevailing party his necessary costs and disbursements in the action, or special proceeding in the nature of an action, except as herein otherwise provided. 246. Where several actions are brought on one bond, undertakings promissory note, bill of exchange, or other instrument in writing, or in any other case, for the same cause of action, against several persons, who might have been joined as defendants in the same action, no costs shall be allowed to the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other ac- tions were at the commencement of the previous action openly within this empire; but the disbursements of the plaintiff shall be allowed to him in each action. 247. Costs shall be allowed of course to the defendant upon a judg- ment in his favor, except as herein otherwise provided. When there are several defendants in an action, making several defenses, such of the defendants as are not recovered against shall be allowed their proper costs. When anew trial is ordered, or a judgment is modified, the costs upon appeal shall be in the discretion of the appellate court. 248. When in an action for the recovery of money only the defendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the full amount to which he was entitlfd, and thereupon deposits in court, for the plaintiff', the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant. 249. In an action prosecuted or defended by an executor, administra- tor, trustee of express trust, or a person expressly authorized by statute, costs may be recovered as in an action by or against a person prosecut- ing or defending in his own right ; but such costs shall, by the judg- ment, be made chargeable only upon the estate, fund, or party repre- sented, unless the court shall direct the same to be paid by the plaintiff or defendant personally for mismanagement or bad faith in the action or defense. 250. When the decision of a court of inferior jurisdiction, in a special proceeding, is brought before a court of higher jurisdiction, for a review in any other way than by appeal, the same costs shall be allowed as in cases of appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case. 251. The party in whose favor judgment is rendered in any action or proceeding, who claims his costs, shall deliver to the court or its clerk within two days after the decision is rendered (unless the court other- wise specially direct) a memorandum of the items of his costs and nec- essary disbursements in the action or proceeding, which memorandum shall be verified by the oath of the party or his attorney, stating that the items are correct and that the disbursements have' been actually made or necessarily incurred and are to be paid in the action or proceed- ing. JUDICIAL EXTRATERRITORIAL RIGHTS. 173 252. In entering up a judgment, costs and interest shall be included to the date of entry, and if the judgment be for the recovery of money alone, or for the value of personal property taken and unjustly detained, the judgment shall bear interest at the rate of twelve per cent, per an- num until paid, and when required execution shall issue for the amount of the payment and interest due thereon at the date of issuing such writ, with subsequent accrued costs. 253. When the plaintiff in an action resides out of this empire, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertak- ing, executed by two or more persons, be filed with the court to the ef- fect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceed- ing the sum of three hundred dollars. Each of the sureties shall justify on the undertaking as required in attachment and other proceedings. A failure for thirty days after being served with such notice to give such security shall operate as a discontiimance of the action. PEES. 254. In consular courts : In all cases when the amount in question is not more than $500 $5 00 In all cases where it is over S.'SOO 15 00 In personal actions and special proceedings, not brought for the recovery of money or damages ; if the action or proceeding be not defended, and be de- termined without a trial 5 00 In such actions if a defense is made and a trial had 15 00 255. Clerk's fees : For issuing all writs, wan-ants, attachments, or other compulsory process, in- chiding the seal 1 50 For docketing every snit commenced 100 For issuing writs of execution, including seal 1 00 For summonses and subpoenas, inclnding seal 50 For recording the testimony in the case, for each hundred words 20 For copying the same, for transcript upon an appeal, or for any other purpose at the request of the party ; or for making copies of any ether documents or pa.pers, when requested, on appeal or otherwise, for each one hundred words 20 For drawing notices, orders, or judgments, for each hundred words or a frac- tion thereof 20 For every seal to process issued, other than upon attachments, writs, warrants, summonses, subpcenas, or other compulsory process I 00 For filing each paper upon the return of the same by the marshal, and for all papers filed in court in any action or proceeding for each 10 For administering each oath or affirmation 25 256. Marshal's fees : For apprehending a deserter and delivering him on hoard the vessel he deserted from, to he paid by the vessel before leaving port 5 00 For searching for the same on request of the captain or owner, and if not found, his services to he certified by the consul, and on his order to he paid by the said ship 2 00 For serving any writ, warrant, attachment, or other compulsory process, for each person served 2 00 For serving summons, each person 1 00 For returning all writs, attachments, warrants, and summonses 50 For each bail bond made out and received by him, and approved 1 00 For receiving a prisoner under a commitment or discharging him from arrest by order of the court 2 00 For subpoenaing a witness 50 For copy of subpoena and return on the original 20 For each day's attendance upon court during a trial or an investigation 3 00 For levying an execution, or executing a writ of restitution 1 50 For advertising property for sale 2 00 174 JUDICIAL EXTRATEERITOEIAL RIGHTS. For releasing property from seizure under execution when ordered so to do by the court or the plaintiff $3 00 For traveling fees in serving all processes, each niile actually traveled in going and returning ..... 15 For serving every notice not heretofore proviiled for, upon order of the court or oue of the parties in action, iu addition to tlie usual traveling fees 50 For selling property under execution , or personal property held under an attach- ment, when the amount collected does not exceed one thousand dollars, 5 per cent. If over one, and not exceeding five thousand dollars, 3 per cent. If over five thousand dollars, 2 per cent. 257. Interpreter's fees : For each day's attendance upon court during the progress of a trial or exami- nation, upon order of the court 3 00 For making any r quired translations of any document or paper containing not over one hundred words 1 00 For each additional hundred words 1 00 258. Witness's fees : - For every day's attendance at court under a subpania 1 50 For each mile of travel in going to or returning from conrt 15 259. Assessors : For each day's attendance upon court, when sworu and serving as such, includ- ing traveling fees -• 3 (iO 260. Ministerial court : The fees of the court and its officers shall be the same as hereinbefore prescribed for the consular courts, except in cases brought before said court, upon ap- peal, in all of which cases a court fee shall be charged of 15 00 In addition to which, the same fees as consuls are allowed to charge shall be allowed for the issuance, filing, &c. , of all papers and process, and also admin- istering oaths, &c. The fees of clerk, marshal, interpreters, &c., iu a ministerial court, shall be the same in appellate as in other cases. Provided, That no other or greater charges shall in any action or pro- oeeding be made for any service or services above specitied by any coiu't or any officer thereof: And provided further, That after the determination of every action and proceeding the court or its clerk shall enter in tlie judgment-book, in which the judgment in the case is entered, a full and particular statement of all fees of the court, marshal, interpreter, wit- nesses, and assessors allowed and paid in the action ; and shall, upon the demand of any party to any action, or his attorney, furnish such statement in detail, or a copy thereof, as a condition to the right to en- force the collection of the same. HABEAS CORPUS. 261. Any American citizen in Japan illegally restrained from his per- sonal liberty may, by petition to any conrt of the United States in said empire, obtain the benefit of the writ of habeas corpus. 262. The application for such writ shall be made by a petition \'eri- fied by the petitioner, or some one on his behalf, setting forth the citi- zenship and place of imprisonment of the applicant, with a brief state- ment of the reasons that led to his imprisonment, to the best of his knowledge and belief, and also a specific statement as to the person in whose custody he then is. 263. The court to which such petition is presented shall forthwith is- sue the writ, which shall be directed to tlie person named in said peti- tion as being the person having the petitioner in his custody; and shall require such person, at a specified time and place, to appear before the JUDICIAL EXTRATERRITORIAL RIGHTS. 175 court witli the petitioner; and at that time to return the said writ to the court that issued it, with his reasons for holding said petitioner in his custody, stated in writing upon said writ. 264. Dpon the return day of said writ, and when the petitioner shall have been brought before the court issuing such writ, the court shall at once, and in a summary manner, proceed to hear and iuquire into the cause of the petitioner's detention ; and to that end may summons and enforce the attendance of witnesses, with such documents and papers as may be required, in the same manner as in other cases; and after hear- ing the cause, may direct the discharge of the petitioner, or may re- mand him back to the custody of the officer or person holding him under arrest, and shall a^vard costs as in other cases. 265. If from the return made it appears that the person so restrained is held by virtue of a commitment, warrant, or other process of a court having jurisdiction over him, and over the offense of which he stands charged or convicted, the court shall restrict its examination to the question of the regularity of the proceedings and process, by virtue of which the arrest and imprisonment was directed. 266. Any citizen of the United States, or officer thereof, who shall willingly neglect, or refuse to obey the order of any court of the United States in the empire in a proceeding of this nature, shall be liable to punishment for CQutempt of court, as in other cases. ASSESSORS. 267. Persons to be qualified to be chosen, and to act as such, must be male citizens of the United States of America, over the age of twenty- one years, resident in this empire, nominated by the consul of the port or city where they reside to the minister of the United States of Amer- ica in the empire, and their nomination approved by him within tweh e months next preceding the time when they are called upon to act as assessors. And it is hereby made the duty "of all consuls of the United States in the empire of Japan to nominate a list of persons in the month of January of each year to the minister as assessors, certifying upon the list sent up by him to the minister that all of the persons thereon named are known to him, the consul, to be citizens of the United States of America, and residents of said empire, and to be of good moral char- acter, and to possess the proper qualifications to act as such; which list, when approved bj'- the minister, shall be filed. A certified copy of the same shall be posted up and kept posted in some conspicuous place in the consulate. CRIMINAL PROCEEDINGS. 1. Proceedings in criminal cases can only be commenced by a written complaint, sworn to by the complaining party, and before process under it shall issue against the person complained of, the judge of the court with whom the same is filed shall certify thereon in writing that he has reasonable grounds for believing that the contents of the same are true. 2. The party charged shall immediately after his arrest be provided with a certified copy of the complaint made against him, and in all cases shall be entitled to "a speedy and a public trial. 3. When the offense charged is such that the party charged is enti- tled by law to the assessors sitting in the case with the judge, such as- sessors shall be selected in the manner provided in civil cases; they shall be similarly sworn, and may be similarly examined, and shall be 176 JUDICIAL EXTRATERRITORIAL RIGHTS. liable to challenge, either by the defendant or the people, upon any of the following grounds, to wit: (1.) That such person has formed or expressed an unqaalifled opinion as to the guilt or innocence of the defendant of the crime with 'which he stands cha- ged ; (2.) That such person is a material or necessary witness on behalf of one or both of the parties to the proceeding; (3.) That such person is related by the ties of consanguinity or affinity to the complaining witness, or the defendant within the third degree; (4.) Having served as an assessor or been a witness on a previous trial of the same person for the same offense; or (5.) That the person is not a citizen or the United States of America; or, if such, that his name does not appear on a list of persons selected by the consul to serve as assessors, which was submitted to and approved by the minister, as required by law and these regulations. 4. The personal presence of the accused shall in iill cases be required throughout the trial of a criminal case. Before the trial commences, the complaint against him shall be read over to him by the court, or its clerk, and he shall be required to plead thereto, which plea shall be guilty or not guilty ; or he may demur to the complaint on any of the following grounds, to wit: That the court has no jurisdiction over the person or the offenses charged, or that more than one offense is charged in the complaint, or that the complaint is so ambiguous and uncertain that a person of common understanding cannot understand what offense is charged, with particulars of time, place, and person. In all cases the plea of the defendant must be personal, and in all cases of felony the defendant shall be allowed at least twenty-four hours in which to plead if he requires it; and in misdemeanors the court shall grant such time to plead as may be deemed reasonable. Immediately after plead- ing, the court shall enter the substance of the defendant's plea in its docket, and the trial shall proceed, unless for good cause shown the court shall grant an adjournment. 5. The accused shall in all cases be allowed to have the benefit of counsel in all stages of the case, if provided by himself; and in prose- cutions for felony, if he have no counsel, the court may appoint some person to act for and assist him, if he requests it. Reasonable delay shall also be granted to either party, as in civil cases, to procure mate- rial testimony. 6. The testimony of an absent person may be taken and used in crim- inal, as in civil cases, when the attendance of such witness cannot be procured, or when from the nature of the application it does not appear that the application is made solely for delay ; or when, if granted, it will not postpone the trial for an unreasonable length of time. 7. Persons subpoenaed as witnesses shall not be entitled, in a criminal proceeding, to demand any fees prior to attending as such ; nor shall they be allowed fees in any criminal case, except so ordered by the court. 8. In all criminal trials the defendant shall be given the benefit of every reasonable doubt, and is to be considered innocent until he is I)roven to be guilty. 9. In all criminal proceedings the complaint shall not charge but one offense, but the defendant may be convicted of any l&sser offense neces- sarily included within the greater one charged (as that of manslaughter when the charge is murder). The offense shall be stated with a reason- able degree of certainty as to the time, place, and manner of its com- mission; and the evidence admitted in the action shall be conflned to JUDICIAL EXTRATERRITORIAL RIGHTS. 177 the allegations of the complaint, and the judgment shall be guilty or not guilty of the offense as charged. 10. In cases when an appeal is allowed by law, the mode of jproceeding to perfect the appeal shall be the same in criminal as in civil cases. 11. Applications for a new trial in criaiinal cases shall in the iirst in- stance be addressed to the court in which the case was tried ; and when an appeal is taken from the judgment, tlie appellate court shall have power to review the proceedings had in relation to the application made for a new trial; as also all interlocutory orders made in the case. 12. Applications for new trials in criminal cases may be made on either or all of the grounds stated in the provision in the regulations relative to applications for new trials in civil cases, except the fourth ; and in the practice governing the making and disposition of the motion, the courts shall be governed by the said regulations relative to similar motions in civil cases. 13. A person charged with crime shall have permission to testify on his own behalf, and shall be informed of this right by the court before his trial is proceeded with ; but the refusal of a person so charged to testify shall not be construed into being a confession of guilt, or be allowed to militate against him. 14. When a punishment is by a fine, costs may be included or remitted, at the court's discretion. An alternative sentence of not exceeding thirty days' imprisonment shall take effect on non-payment of any part of the fine or costs adjudged in any criminal proceeding. 15. Any prisoner, before conviction, may be admitted to bail by the court which issued the process for his arrest, except in capital cases, when the proof is evident, or the presumption of his guilt is great. After conviction and an appeal is perfected, the minister only can admit a person to bail. 16. A court applied to to release a person upon bail shall at once fix the amouht of bail required (if the case be a bailable one), and the de- fendant may then give security in double that sum by an undertaking conditioned for his appearance at the trial, and that he will render him- self amenable to the judgment of the court in the action as soon as ren- dered, and may be given by an undertaking, executed by one or more sureties, as is provided in cases of arrest and bail in civil cases,^ with like justification of the sureties. 17. Any security on any bail bond may, at any time before the trial of the defendant, surrender him to the court, and be released from his undertaking upon payment of all costs and charges of the prosecution to that date. The court, when a defendant is thus surrendered, shall at once remand him to custody for trial, but may accept new bail. 18. Excessive bail shall in no case be required or exacted. 19. Any complainant may be required to give security for costs of the prosecution, including those of the accused, and every complainant not a citizen of the United States of America, or a subject to the Japanese empire, shall be required to give such security, unless in the opinion of the court justice will be better promoted otherwise. When such security is required by the court and refused, the proceeding may be dismissed. 20. In anyWiminal proceeding if the defendant be acquitted, and the court in its judgment en terad in the case include a finding that the prosecu- tion was without probable cause, it shall direct the party making the complaint to pay the whole costs of the proceeding, and may by execu- tion and in a summary manner compel the payment of the same. 21. Consuls will ordinarily encourage the settlement of all prosecu- S. Mis. 89 12 178 JUDICIAL EXTRATEEEITOHIAL EIGHTS. tions other than those for felonies. Compounding a felony shall not be allowed ; and any person guilty thereof may be tried and punished, ■vrith a similar degree of punishment as by law is provided for the punish- ment of the felony itself. 22. The punishment of persons convicted of crimes in the courts of the United States in this empire, except in such cases as are otherwise provided by law, shall be as follows: Murder in the first degree shall be punishable by death ; murder in the second degree by imprisonment for life; murder in any other degree, or manslaughter, by imprisonment for not less than five, nor more than twenty years. All other felonies by imprisonment not exceeding ten years. For misdemeanors at the common law, the punishment shall not in any case exceed a fine of five hundred dollars, or imprisonment for the period of six months; or by both such fine and imprisonment. 23. A person convicted of felony, or twice convicted of misdemeanor, may be sentenced to deportation, and perpetual banishment from the empire. 24. All crimes shall be known as felonies or misdemeanors, as thus classified by the rules of the common law. 25. Costs shall be the same in criminal as in civil cases, except that of witnesses; but shall in no case be charged against the G-overnment of the United States of America. C. E. De long. Legation op the United States to Japan, Tolcohama, September 1, 1870. United States Consulate, Yeddo, Japan, September 2, 1870. Assented to. CHAELES O. SHEPAED, United States Consul. United States Consulate, Kanagawa, Japan, September 6, 1870. Assented to. LEMUEL LYOIST, United States Consul. United States Consulate, Osaka and Hiogo, Japan, September 8, 1870. Assented to. T. SCOTT STEWART, United States Consul. United States Consulate, Nagasaki, Japan, September 14, 1870. Assented to. WILLIE P. MANGUM, United States Consul. United States Consulate, Hakodadi, Japan, September 21, 1870. Assented to. E. E. EICE, United States Consul, JUDICIAL EXTRATERRITORIAL RIGHTS. 179 APPiENDIX X. LAND MUNICIPAL REGULATIONS AT SHANGHAI. Land Regulations. 15. Consuls may at any time call meeting of land renters, &o. 16. Cemeteries for foreigners, Cliinese 1. Boundaries and limits deliued. 2. Mode of acquiring land. 3. Final settlement and title deeds. 4. Registration of land and charges there- ' graves, &o. ""■ 17. Breach of regulations. 5. Transfer of lots. 18. Election of council and qualifications 6. Laud surrendered to public use. of voters at public meetings. 7. Bouudary stones to be placed. 19. Nomination and voting for council. 8. Chinese Government land tax. i 20. Vacancies. 9. Road and jettees, assessment on land ' 21. Tenure-of-ofiflce. and houses, rates, dues, and taxes. { 22. Questions and quorum. Consuls to convene meetings of , 23. Committees appointed by council, renters, and other persons enti- i 24. Officers, tied to vote. I 25. Funds. 10. Land renters and others, &o., to ap- I 26. Persons acting in execution of these poiri committee or council. regulations not to be personally 11. Committee or council to have power liable. to make by-laws. 27. Mode of suing the council. 12. Accounts, how to be audited. : 28. Board of Chinese delegates. 13. Defaulters, how to be sued. l 29. That land renters and rate payers 14. How penalties, forfeitures on licenses, ! shall be taken to mean "electors." fees, &c., under by-laws, are to be reco ered. ' PREAMBLE. Whereas certain regulations, entitled land municipal regulations, for the peace, good order, and government of all persons residing on the laud set apart by the Chinese authorities for the residence of foreigners, were settled and agreed upon by the representatives of England, Prance, and the United States of America, then being the three treaty powers, and under their instruction by the consuls of the above-mentioned states in communication with his excellency Woo, the chief local authority representing the Chinese G-overnment at Shanghai ; and whereas it was therein provided that hereafter, should any corrections be requisite in the aforesaid regulations, or should it be necessary to determine on further rules, or should doubts arise as to the construction of, or powers conferred thereby, the same should be consulted upon and settled by the foreign consuls and intendant of circuit, in communication together, who should equitably decide thereon, and submit the same for confir- mation to the representatives of their respective countries in China, and to the Chinese imperial commissioner, managing the affairs at the five ports ; and whereas it is expedient that the said regulations should be revised, and that further and better provisions should be made for the peace, good order, and government of all persons residing on the land so set apart as aforesaid : Be it ordered, That the following revised reg- ulations which have been agreed to and settled by the undersigned consuls in communication with his excellency the intendant of circuit, and the by-laws annexed thereto, shall have effect and be binding upon all persons residing or being within the limits of the said land so set 180 JUDICIAL EXTKATEREITORIAL EIGHTS. apart, as to all matters and things comprised therein, from and after the expiration of one mouth after the same shall have been affixed and kept exhibited at the offices of the various foreign consulates. Given under our respective hands and seals of office at Peking, China, this day of , 1866. REGULATIONS. I. The boundaries of the land to which these regulations apply, are : 1. Those defined in the land regulations settled and agreed upon by Captain Balfour, Her Britannic Majesty's consul, and Kung-Mooken, in- tendant of circuit, on the 24th day of September, 1846, and further de- fined in the agreement entered into between Rutherford Alcock, esq.. Her Britannic Majesty's consul, and Lin, intendaut of circuit, on the 27th day of November, 1846, and set forth in the copy hereunto annexed of the original map attached to the said agreement. 2. Those described in a proclamation issued by Lin Taoutae, bearing date the 6th day of April, 1849, in consequence of an arrangement en- tered into between his excellency on the one part and M. de Montigny, the consul of France, on the other part, for the assignment of a space within which French subjects should be at liberty to acquire land and build residences, &c., an arrangement subsequently approved and con- firmed by the minister of France, M. de Forth Eoiien, and the Imperial Commissioner Sen, such boundaries being as follows: To the south, the canal which extends round the walls of the city from the north gate; to the north, the Yang-King-Pang; to the west, the temple of Kwau-te and the bridge of the family Chow ; to the east, the river Hwang-poo from the Hai-Kwan or Canton Cousoo house to the mouth of the Yang-King-Pang. [Note to 2d section. — As the French Government appear to be de- sirous of establishing a separate system of regulations for the munici- pal control of that portion of the general settlement of Shanghai which is described in the second section hereof, it is understood that so long as the action of that government shall preclude the extension of the code of rules lierein provided, these rules shall not be considered of any effject or force in the quarter referred to.] And 3. On the Hongque side, north, the line from Yang tszepoo to the point opposite the Defence Creek. South, Hwang-poo from the mouth of the Soochew Creek to the mouth of the creek entering the Hwang-poo, near the lower limit of the anchorage caled the Yang-tsze- poo; west, the Shoochew Creek from a point opposite the entrance of Defence Creek to the Hwang-poo ; east, the bank three li along the line of the Yaugtsze-poo. Within the boundaries defined in the map above referred to under the first head are certain sites, namely, the new custom-house and the tem- jile of Eewards, together with the land set apart for the use of Her Britannic Majesty's government, known as the British consulate site, which are exempted from municijial control, as well as any land here- alter to be settled or acquired by the governments of France or the United States of America, or other goveinments having treaties with China, for government purposes only ; but the British and foreign con- sulate sites, the custom-house, and any lands acquired as above, shall bear their share of the public burdens and municipal taxes. TI. Anv nerson desiring to rent land or purchase houses from the Chinese proprietors, within the said limits, shall do so in accordance JUDICIAL EXTEATERRITOEIAL RIGHTS. 181 with the provisions laid down in the treaties of foreign powers with China. III. It having been ascertained that no impediment exists to therent- ing of the land, the parties interested may settle with the Chinese pro- prietors the price and conditions of sale, and they will then report the transactions to their consular representatives, and lodge with him the Chinese proprietor's agreement or deed of sale, in duplicate, accom- panied by a plan, clearly marking the boundaries. The said consular representative shall then transmit the same to the intendent of the circuit for examination. If the sale be regular the deeds will be re- turned to the coisul sealed by the intendant of circuit, and the purchase money can then be paid. If there are graves or coffins on the land rented, their removal must be a matter of separate agreement, it being contrary to the custom of the Chinese to incl iide them in the agreement or deed of sale. IV. All such conveyance oi' leases of land so purchased as aforesaid shall, within one month from time of the completion of the sale, be regis- tered in the ofiice of the consular representative of the purchaser, and all charges by way of mortgage, whether of a legal or equitable charac- ter, shall also be registered in the like manner and within one month of their execution. V. That all transfers of land shall be made at the consulate where the deeds are registered, and also be registered at that of the vendee or assignee. VI. It is understood and agreed that land heretofore surrendered by the various foreign renters to public use, such as roads and the beach grounds of the rivers within the aforesaid limits, shall remain hence- forth dedicated to the same uses, and as new lots are acquired such parts thereof as are beach ground shall be held under and subject to similar uses, and due provision shall be made for the extension of the lines of road at present laid down as means of communicition in the settlement. To this end the counsel appointed by the land renters and others entitled to vote on the terms, and in the manner, hereinafter men- tioned, within the boundaries referred to, will, at the beginning of each year, examine the map and determine what new lines of road are neces- sary, and all lauds subsequently rented shall only be rented on the terms of the renter surrendering to the imblic use the beach ground aforesaid, if any, and the land required for such roads, and in no case shall laud so surrendered, or which shall now be dedicated to the use of the public, be resumed, except with the consent of the proper major- ity of land renters and others who may be entitled to vote as aforesaid in public meeting assembled, nor shall any act of ownership be exer- cised over the same by the renters thereof, notwithstanding any payment by them to the Chinese Government of any ground rent: Provided always, That no act of appropriation or dedication for public uses of the said beach ground, or of grounds for roads, other than those already defined shall, contrary to the will of the renters thereof, in any case, be sanctioned or held lawful under these regulations. On the admission by vote of public meeting of any tracts of land into the limits of the municipal authority, the municipal council shall give notice of all roads and public properties which they intend to set aside in the general in- terest, and should any citizen or subject of a treaty power, who may previously have acquired land within saiH tract, object to any part of 182 JUDICI&.L EXTRATERRITORIAL RIGHTS. the reservation thus notified, he must, within 14 days after the issue of the notice, warn his own consul or the municipal council of his ob- jection, in order that steps may be taken to adjust the claim: Provided always, That in the event of a failure to effect such adjustment on terms which may appear reasonable to the consul, the council shall have the option of declining to accept jurisdiction over the proposed annexation, which consequently cannot take place. It shall also be lawful for the land renters and others who maybe entitled to vote as hereinafter men- tioned, in public meeting assembled, to purchase land leading or being out of the settlement, or to accept land from foreign or native owners upon terms to be mutually agreed upon between the council and such foreign or native owners for the purpose of converting the same into roads or ijublic gardens and places of recreation and amusement, and it shall be lawful for the council from time to time to apply such portion of the funds raised under article 9 of these regulations, for the purchase, creation, and maintenance of such roads, gardens, &c., as may be neces- sary and expedient : Provided always, That such road and gardens shall be dedicated to the public use, and for the health, amusement, and recreation of all persons residing within the settlement. VII. When land is rented, stones having the number of the lot dis- tinctly cut thereon, in English and Chinese, must be placed to define the boundaries thereof, under the supervision of the consul applying for the land, and of the Chinese local authorities. A time will be named for the boundary stones to be fixed, in the presence of an officer deputed by the consul, of the Tepaon of the district, and of the Chinese proprie- tors and the renter, in such manner that they may not interfere with the lines of road or the boundaries, or in any other way give cause for litigation and dispute hereafter. VIII. The annual rent on all lands leased by foreigners, reserved to the Chinese Government, shall be payable in advance on the 15th day of the 12th moon of each year. And all rent in arrear and unpaid on that day shall be recoverable in a summary manner, on the complaint of the intendant of circuits, in the court of the consular representative of the defaulting renter. IX. It being expedient and necessary for the better order and good government of the settlement that some provision should be made for the making of roads, building of public jettees, offices, and bridges, and keeping them in repair, and for cleansing, lighting, watering, and drain- ing tbe settlement generally, and establishing a watch or police force therein, paying the persons necessarily employed in any municipal office or capacity, or for raising money by way of loan for any of the purposes aforesaid, the foreign consuls shall so soon after the first day of Ajml in each year, or when it may appear to them needful, or on the requisi- tion of the municipal council, or of the renters of land and others entitled to vote, on tbe terms hereinafter mentioned, convene a meeting of such persons to devise ways and means of raising the requisite funds for these purposes, and at such meeting it shall be competent to the said persons, or a majority of them, in public meeting duly assembled, to declare an assi ssment in the form of a rate to be made on the said land ■ or buildings : Provided always. That the proportion between the tax on land and on houses or buildings shall not exceed one-twentieth of one per cent, on the gross value of land, to one per cent, on the annual rental of houses; and it shall also be competent for the said persons, or a ma- iority of them, as aforesaid, to impose other rates or taxes in the form JUDICIAL EXTRATEREITORIAL RIGHTS. 183 of dues on all goods landed or shipped or transshipped through the Chinese custom-house at any place within the said limits; provided the said rates or taxes levied in the form of dues shall in no case exceed the amount of one-tenth of one per cent, on the value of goods landed, shipped, or transshipped, and in such other forms as may appear requi- site and necessary for the purposes aforesaid. X. And whereas it is expedient that the said land renters and others as aforesaid, in public meeting duly assembled, under and in accord- ance with the provisions of the preceding article, should appoint in the mode hereinafter provided, an executi\ e contmittee or council, to con- sist of not more than nine persons, for the purpose of levying the rates, dues, and taxes hereinbefore mentioned, and applying the funds real- ized from the same for the purposes aforesaid, and for carrying out the regulations now made : Be it further ordered, that such committee when appointed shall have full power and authority to levy and apply such rates, dues, and taxes, for purposes aforesaid, and shall have power and authority to sue for all arrears of such rates, dues, and taxes, and re- cover the same from all defaulters in the courts under whose jurisdiction such defaulters may be. XI. "When, in pursuance of these regulations, the above-mentioned committee or council shall be duly elected, all the power, authority, and control conferred by the bylaws now sanctioned and annexed to these regulations, and all the rights and property which, by such by-laws, are declared to belong to any committee or council, elected as aforesaid, shall vest in and absolutely belong to such committee or council, and to their successors in office, and such successors as are duly elected, and such committee shall have power and authority from time to time to make other by-laws for the better enabling them to carry out the object of these regulations, and to repeal, alter, or amend any such bylaws: Provided, Such by-laws be not repugnant to the provisions of these regulations, and be duly confirmed and published : And provided, aluo, That no by-law made by the committee under the authority of these reg- ulations, except such as relate solely to their council or their officers or servants, shall come into ope^tion until passed and approved by the consuls and ministers of foreign powers hajing treaties, and the rate- payers ill special meeting assembled, of which meeting, and object of it, ten days' notice shall be given. XII. And whereas it is also expedient that due provision should be made for the auditing of the accounts of the said committee, and for the obtaining the approval and sanction of them by the rate-payers in public meeting duly assembled, be it ordered that the result, of the said audit shall be made known, and the said sanction and approval shall be made at the annual public meeting convened by the consuls as here- inbefore mentioned. XIII. And be it further ordered, that it sliall be lawful for the said committee or their secretary to sue all defaulters in the payment of all assessments, rates, taxes, and dues whatsoever levied under these regu- lations, and of all fines and penalties leviable under the by-laws an- nexed to them in the consular, or the courts under whose jurisdiction _ such defaulters may be, and to obtain payment of the same by such means as shall be authorized by the courts in whicb such defaulters are sued : Provided, That in case any one or more of the said defaulters, or owners, shippers, or consignees of goods refusing to pay, have no consular 184 JUDICIAL EXTRA-TERRITORIAL RIGHTS. representative to Shanghai, the said committee shall, with consent of the local authorities, be at liberty to detain and sell such portion of the goods, or use such other means as, with the consent of the local authori- ties, may be necessary to obtain such payment of such assessments, rates, taxes, dues, flues, and penalties, or in respect of land or house assess- ment to distrain on the land or houses to such an extent as may be re- quired to satisfy such assessment or dues. XIV. Be it also further ordered, that any penalty, or forfeiture, or fees, or licenses provided for in the by-laws framed under the authority of these regulations, and imposed in pursuance of such by-laws, may be re- covered by summary proceedings before the proper consular or other authority, and it shall be lawful for such authority, upon conviction, to adjudge the offender to pay the penalty or incur the forfeiture as well as the costi attending the, conviction as such authority may think fit. All tines and penalties levied under these regulations, and tlie by-laws framed and t9 be framed under them, shall be carried to the credit of the committee in diminution of the general expenditure authorized by the provisions of these regulations. XY. Be it further ordered, that it shall be competent for the foreign consuls, collectively or singly, when it may appear to them needful, or at the requisition of the electors of land or buildings, to call a public meeting at any time, giving ten days' notice of the same, setting forth the business upon which it is convened, for the consideration of any mat- ter or thing connected with the municipality : Provided always, That such requisition shall be signed by not less than ten of the said electors, and that it set forth satisfactory ground for such request. And all resolutions passed by a majority at any such public meeting, on all such matters aforesaid, shall be valid and binding upon the whole of the said electors, if not less than one-third of the said electors are present or represented. At such meeting the senior consul present shall take the chair, and in the absence of the consul, then such elector as the majority of voters present may nominate. In all cases in which electors in public meeting assembled as herein provided decide upon any matter of a municipal nature, not already enumerated, and affecting the general interests, such decision shall first be reported by the chairman to the consuls for their concurrence and approval, and unless such approval be officially given such resolution shall not be valid and binding : Provided always, That a term of two months shall elapse between the date of the resolution and the signification of approval by the consuls, during which time any per- son considering himself prejudiced in property or interests by the reso- lution may represent his case to the consuls for their consideration. After the expiration of the term of two months the consular approval, if signified, shall be considered binding. XVI. Within the said limits lands may be set apart for foreign ceme- teries. In no case shall the graves of Chinese on land rented by foreign- ers be removed without the express sanction of the families to whom they belong, who, also, so long as they remain unmoved, must bo allowed every facility to visit and sweep them at the established period, but no coffins of Chinese must hereafter be placed within the said limits, or be left above ground. XVII. Hereafter, should information of a breach of these regulations be lodged with any foreign consul, or should the local authorities ad- dress him thereon, he may, in every case within his jurisdiction, sum mon or cause to be summoned the offender before him, and if convicted JUDICIAL EXTRA-TERRITORIAL RIGHTS. 185 punish him, or cause him to be punished summarily, either by a fine not exceeding $300, or by imprisonment not exceeding six months, or in such other manner as may seem just. Should any foreigner who has no consular authority at Shanghai commit a breach of the said regulations, then and in such case the Chinese chief authority may be appea,led to by the council, through one or more of the foreign consuls, to uphold the regulations in their integrity, and punish the partv so infringing them. XVIII. Every foreigner, either individually or as a member of a firm, residing in the settlement, having paid all taxes due, whose annual pay- ment of assessment on land or houses, or both, exclusive of all payments in respect to licenses, shall amount to taels 15, or dollars 20, or upwards, or who shall be a householder paying a rental of not less than taels 450, or dollars 600 per annum, or who being a resident of 12 months' stand- ing shall be hi receipt of au annual salary or income of 1,000 taels, shall be entitled to vote in the election of the said members of the council, and at the public meetings, and none shall be qualified to be a member of the said council unless he shall pay an annual assessment, exclusive of licenses, of taels 25, or dollars 3'd ; or shall be a householder paying a rental of taels 900, or dollars 1^200 per annum. XIX. It shall be competent to any two rate-payers entitled to vote to nominate any qualified rate- payer for election as a member of the coun- cil, and all such nominations shall be sent in in writing, with the signa- tures of the proposer and seconder, as also the assent in writing of the candidates proposed, that they will serve if elected, at least 14 days before the day appointed for the election, to the secretary or other offi- cer appointed by the existing council to receive such nominations. L)n the day after the expiration of the time allowed for sending in such nominations as aforesaid, the existing council shall cause a list of the rate- payers proposed for election to be advertised in the public journals, and shall likewise cause such list tobe exhibited thenceforward until the day of election, in some conspicuous place in the council-room, between the hours of 10 a. m. and 4 p. m. On the day appointed for the election, should the number of rate- payers jiroposed for election as councillors exceed nine, two officers, ap- pointed by the existing council, shall attend at the place appointed for the election to receive the votes of the rate payers. These officers shall be provided with a list of all the rate-payers duly qualified to vote, and shall give to each such rate-payers as may he present* and .may require it, a voting card or paper containing a list of the rate-payers proposed for election. The voter shall then mark on such voting list the names of any number of persons, not exceeding nine, for whom he intends to vote, and shall deposit the list, signed by himself with his own name so marked, in a close box, provided for the purpose ot receiving such list. The poll shall remain open for two consecutive days, from 10 a. m. to 3 p. m., at which hour on the second day the poll shall be closed. Im- mediately upon the close of the poll,, two scrutineers, appointed by the council, shall, without delay, proceed to open the box or boxes, examine the voting lists, and declare the names of the nine rare paj^ers who have the greatest number of votes, and who shall thereupon be con- -sidered duly elected as the coiincil for the ensuing municipal year. Should the number of names proposed for election be exactly nine, it shall not be necessary to have a poll, but on the day after the expira- * Uuder these regulations, voting by ijroxy is practically prevented, as the rate- payer must be present. 186 JUDICIAL EXTEATERRITOEIAL RIGHTS. tion of the time appointed for sendiugin uominations, the existing couu- cil shall advertise and make known the names of nine rate-payers pro- posed, and they shall be considered to be duly elected as the council for the ensuing mtmicipal year. Should t;he number of names proiDosed for election be less than nine, then on the day after the expiration of the time appointed for sending in nominations, the existing council shall advertise and make known the names of the rate-payers, to be held on the day appointed for the elec- tion; at which meeting the rate-payers present shall proceed to elect, either by ballot or otherwise, as they may then decide, as many more rate-payers as may be requisitfe to make the number before proposed up to nine; and such nine rate-payers shall be considered duly elected as the council for the ensuing municipal year. XX. In case of a vacancy or vacancies occurring during the municipal year, the existing council shall have the power to fill up such vacancy or vacancies by the vote of the majority of the council, providing such vacancies do not exceed three in number. Should the vacancies exceed three, an election of the whole number of new members who have not been originally elected shall be called, in the manner previously provided in respect of an election when the num- ber proposed were less than nine. XXI. The council shall enter upon their office so soon after the ac- counts of the retiring committee shall have been audited and x)assed at the annual meeting in April, meytioned in Article IX; and at their first meeting the new council shall elect a chairman and vice-chairman, who shall hold office for one year. In their temporary absence the members present at any meeting of the council shall elect their chairman for such meeting. XX II. On all questions in which the members of the council present are equally divided in opinion, the chairman shall have a second or cast- ing vote. Five members of the council shall constitute a quorum for the dispatch of business. XXIir. The council may, from time to time, appoint out of their own body such and so many committees, consisting of such number of per- sons as they shall think lit, for all or any of the purposes wherein they are empowered to act, which, in the discretion of the council, would be better regulated and managed by means of such committees, and may fix the quorum of such committees. XXIV. The council may, from time to time, appoint such officers and servants as they think necessary for carrying out these regulations, and fix the salaries, wages, and allowances of such oflBcers and servants, and may pay the same out of the municipal fur ds ; and make rules and regu- lations for the government of such officers and servants ; and may dis- continue or remove any of them from time to time as they shall think fit. XX V. The council shall administer the municipal funds for the public use and benefit at their discretion, provided they do not exceed the sum voted at the annual meeting or any special meeting called to vote ex- penses ; and a statement shall be drawn up by them at the end of each yenr for which the council has been elected, showing the nature and JUrtlCIAL EXTRATERRITORIAL RIGHTS. 187 amount of the receipts and disbursements of the municipal fund for that year; and the said statement shall be published for general information. XXVI. No matter or thing done, or contract entered into, by the council, nor any matter or thing done by any member thereof, or by the secretary, surveyor, superintendent of police, or other officer or ]>erson whomsoever acting under the direction of the council, shall, if the mat- ter or thing were done, or the contract entered into bona fide, for the purpose of executing these regulations, subject them, or any of them, personally, to any action, liability, claim, or demand whatsoever; and any expense, properly and with due authority incurred by the council, member, secretary, surveyor, superintendent of police, or other officer or person acting as last aforesaid, shall be borne and repaid out of the rates levied under the authority of these regulations. XXVII. If a citizen or subject of any foreign government represented at Shanghai by an officer haviug judicial functions shall consider Mdi- self aggrieved in respect of any right or privilege or otherwise by any of the council, the said officer, on proper representation, shall endeavor to arrange a submission of the matter to arbitration ; but if the said officer shall be unable to effect a submission of the matter to arbitration, he shall, at the petition of such citizen or subject, proceed to hear the question and to decide it conformably to an equitable consideration of the rules. The said officer shall sit alone, and either party may appeal from his judgment to the minister of the complainant's government at Peking, or in the absence of a minister, to the complainant's government, who shall have full power to judge the same. The decision upon the appeal shall be final. All proceedings shall be taken in open court, and in the usual form of the court, excepting that notices, instead of usual processes, shall be served upon the council. Witnesses may be compelled to attend by re sort to the apijropriate court. Notice to the chairman of the council shall be construed as notice to the council. The council may appear by the chairman, or by any councillor delegated, or by counsel. Judgment may be given against either party failing to appear, on notice being proven, but only after an examination of those appearing. Judgments against the council (for specific performance), in respect to rights, shall be respected by the council, but if disregarded, oa motion judgment for damages may be entered. Judgment for damages ma.f be recovered on execution levied against property, or moneys of the council in the hands of persons of the nation- ality concerned. Appeals must be claimed within seven days after judgment shall have been notified to the parties, and perfected within fourteen days after such notice. XXVIII. A board of three Chinese delegates, resident in the settle- ment, shall be formed for the purpose of advising and consulting with the council on matters affecting the Chinese populatiDn, as regards tax- ation, maintenance of order, «&c., &c., in the following manner : The senior consul shall, during the mouth of March of each year, officially request the Taotae to direct the tung-sze, i. e., the representatives and headmen of the several native communities, guilds, chambers, and clubs, to meet and elect three Chinese delegates aforesaid. Due notice shall be given to these delegates when such subjects are under discussion ; but their functions shall be solely consultative. No new tax, nor new measure of police, nor sanitary regulation affecting the native community, shall 188 JUDICIAL EXTRATERRITOKIAL EIGHTS. take effect until the said Chinese delegates have been consulted thereon. They shall be invited to present written statements of their views, which shall be entered on the minutes of the council meetings and published, XXIX. That the words " renters of land," and " rate-payers," wherever they occur in the foregoing regulations shall, where not other- wise indicated by the connection in which they occur, be taken t,o mean electors entitled to vote, according to the terms of XVIII. XXX. Hereafter, should any corrections be requisite in these regula- tions, or should it be ne(!essary to determine on further rules, or should doubts arise as to the construction of or powers conferred thereby, the same must be consulted upon and settled by the foreign consuls and intendant of circuit in communication together, who shall equitably de- cide thereon, and submit the same for confirmation to the representa- tives of their respective countries in China, and for the sanction of the Chinese government. By-laws. I. Control and management of sew- ers and drains. II. Power to make sewers and drains. III. Power to enlarge and alter sew- ers and drains. IV. Penalty on any unauthorized per- son for making any drain flow into public sewers without con- sent of council. - v. No person to build over any pub- lic sewer without cousentof coun- cil.- VI. Sewers aud drains to be provided with traps. VII. Expenseof maintaining and clean- ing sewers and drains. VIII. No one to build or rebuild a house until a covered drain be con- structed. IX. Council shall be surveyors of high- ways. X. Management of streets aud the repairs thereof, to vest in council. XI. Council may stop up any street pending construction, &c., of a sewer. XII. Penalty on making unauthorized alierations in the streets. XIII. Council may alter situation of gas or water pipes. XIV. Water spouts to be afiSxed to houses or buildings. XV. Penalty for not lighting deposits of building materials or excava- tions. XVI. Penalty for continuing deposits of building materials or excava- tions an unreasonable time. XVII. Dangerous places to be repaired or inclosed. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. XXVI. XXVII. XXVIII. XXIX. XXX. XXXI. XXXII. XXXIII. XXXIV. XXXV. XXXVI. XXXVII. XXXVIII. XXXIX. XL. XLI. XLII. for to Cleaning streets — ^council to cause streets to be cleansed, and dust and ashes to be re- moved from the houses. Council may compound sweeping footways. Ruinous buildings. Expenses of removal. When owners cannot found. Projections of houses, &e., be removed on notice. Obstruction of streets. Cleaning streets. Conveyance of offensive mat- ter. Stagnant pools. Regulation to prevent accu- mulation of dung, &c. Certificate of health office; filth to be removed. Houses to be whitewashed aud purified, on certificate of offi- cer of health, &c. Council may order nuisances to be abated. Observalions of scavenger. Dangerous buildings. Licenses. Disturbance in streets. Lamps. Carrying arms. Transient offender. Penalty for disobedience of order in council. By-laws. Penalty to be summarily re- covered. Publication of by-laws. By-laws annexed to the land municipal regulations for the foreign quarter of Shanghai, this day of , 186-. I. The entire control and management of all public sewers and drains within the limits of these regulations, and all sewers and drains in and JUDICIAL EXTEATEEEITORIAL EIGHTS 189 under the streets, with all the works and materials thereunto belonging, whether made at the time these regulations become valid or at any time thereafter, and whether made at the cost of the council or otherwise, shall vest in and belong to the council. II. The council shall, from time to time, cause to be made under the streets such main and other sewers as shall be necessary for the effect- ual draining of the town or district within the limits of the settlement, and also all such reservoirs, sluices, engines, and other works as shall be necessary for cleaning such sewers ; and if needful, they may carry such sewers through and across all or any of the streets, doing as little damage as may be, and making compensation as aforesaid, to be deter- mined by arbitration or recoverable in the manner provided by the land regulations, for any damage done; and if for completing any of the aforesaid works it be found necessary to carry them into or through anv inclosnre or other lands, the council may, after reasonable notice, carry the same into or through such lands accordingly, making compensation to the owners and occupiers thereof; and they may also cause such sewers to communicate with and empty themselves into the river, or they may cause the refuse from such sewers to be conveyed by a proper channel to the most convenient site for collection and sale for agricultural or other purposes, as may be deemed most expedient, but so that the same shall in no case become a nuisance. III. The council may from time to time, as they see fit, enlarge, altrr, and arch over, and otherwise improve all or any of the sewers vested in them ; and if any of such sewers at any time appear to them to have become useless, the council, if they think fit to do so, may demolish and .discontinue such sewers: Provided, That it may be so done as not to create a nuisance. IV. Every person, not being employed for thatpurpose by the council, who shall make any drain into any of the sewers or drains so vested in the council, shall forfeit to the council a sum not exceeding $100; and tire council may cause such branch drain to be remade as they think fit, and all the expense incurred thereby shall be paid by the person making- such branch drain, and shall be recoverable by the council as damages. V. No sewer or drain shall be made, or any building be erected over any sewer belonging to the council, without the consent of the council first obtained in writing; and if, after the passing of the revised land regulations, any sewer or drain be marie, or any building be erected contrary to the provisions herein contained, the council may demolish the same, and the expenses incurred thereby shall be paid by the person erecting such building, and shall be recoverable as damages. VI. Ail sewers and drains within the limits of these regulations, whether public or private, shall be provided by the council or other persons to whom they severally belong, with proper traps, or other coverings or means of ventilation, so as to prevent stench. VII. The expense of maintaining and cleansing all sewers, not herein- before provided for, shall be defrayed out of the rates and taxes to be levied under Article IX of the land regulations. VIII. It shall not be lawful to erect any house in the settlement, or to rebuild any house in the settlement, until a drain or drains be con- structed of such size and materials, and at such level, and with such fall, as, upon the report of the survej or made to the council, shall ap- pear to be necessary and sufficient for the proper and effectual drainage of the same and its appurtenances ; such report to be made within 14 days after notice is given to the said surveyor of the proposed erection or rebuilding; and in default thereof, all parties shall be at liberty to 190 JUDICIAL EXTRATERRITOEIAti EIGHTS. proceed with any such erection or building, as if no such report were required ; and if a sewer of the council, or a sewer which they were en- titled to use, be within 100 feet of any part of the site of the house to be buifc or rebuilt, the drain or drains so to be constructed shall lead, from and communicate with such sewer as the council shall direct, or if no such means of drainage be within that distance, then the last-men- tioned drain or drains shall communicate with and be emptied into such covered cesspool or other place not being under any house, and not being within such distance from any house, as the council shall direct; and whosoever erects or rebuilds any house or constructs any drains contrary to this by-law, shall be liable for every such offense to a pen- alty not exceeding $250; and if at any time, upon the report of the sur- veyor, it ap]>ea,r to the council that any house, whether built before or after the passing of this by-law, is without any drain, or without such a drain or drains communicating with a sewer as is or are sufficient for the proper and effectual drainage of the same and its appurtenances ; 'and if a sewer of the council, or a sewer which they are entitled to use, be within 100 feet of any part of such house, they shall cause notice in writing to be given to the owner or occupier of such house, requiring him forthwith, or within such reasonable time as shall be specified therein, to construct and lay down in connection with such house one or more drain or drains, of such materials and size, at such level, and with such fall, as upon the last-mentioned report shall appear to be nec- essary ; and if such notice be not complird with, the council may, if they think fit, do the works mentioned or referred to therein ; and the expenses incurred by them in so doing, if not forthwith paid by the owner or occupier, shall be defrayed by the council, and by them recov-. ered from the owner of the house, in the same manner as a penalty under these bylaws is recoverable. IX. The council, and none others, shall be surveyors of all highways within the limits of the aforesaid regulations, and witliin those limits shall have all such power and authorities, and be subject to all such liabilities, as any surveyors of highways are usually invested with. X. The management of all the public streets, and the laying out and repaving thereof on passing of the Eevised Regulations, or which there- after may become public highways, and the pavements and other mate- rials, as well in the footways as carriage-ways of such public streets, and all buildings, materials, implements, and other things provided for the purposes of said highways, shall belong to the council. XI. The council may stop any street, and prevent all persons from passing along and using the same for a reasonable time during the con- struction, alteration, repair, or demolition of any sewer or drain in or under such street, so long as they do not interfere with the ingress or egress 6f persons on foot to or from their dwellings or tenements. XII. Evei-y person who willfully displaces, takes up, or makes any alteration in the pavement, flags, or other materials of any street under the management of the council, without their consent in writing or with- out other lawful authority, shall be liable to a penalty not exceeding- $25 ; and also a further sum not exceeding $1 for every sqviare foot of the pavement, flags, or other materials of the street so displaced, taken u|), or altered. XIII. For the purpose of the aforesaid regulations, if the council deem it necessary to"raise, sink, or otherwise alter the situation of any water- pipe or gas-pipe laid in any of the streets, they may, from time "to time, by notice in writing, require the person or persons to whom any such pipes or works belong, to cause forthwith, as soon as conveniently may JUDICIAL EXTKATEREITORIAL RIGHTS. 191 be, auy sueli pipes or works to be raised, sunk, or otherwise altered in position in such manner as the council direct: Provided^ That such alteration be not such as permanently to injure such works, or to pre- vent the water or gas from flowing as freely and conveniently as before ; and the expenses attending such raising, sinking, or altering, and com- pensation for every damage done thereby, shall be paid by the council out of the rates and taxes levied under the regulations aforesaid. If the person or persons to whom any such pipes or works belong do not proceed forthwith, or as soon as conveniently may be, after the re- ceipt of such notice, to cause the same to be raised, sunk, or altered in such manner as the council require, the council may themselves, but then at the costs and charges of the person or persons to whom the pipes or works belong, such costs and charges to be recoverable in the same way as the penalties enacted under these by-laws, cause such pipes or works to be raised, sunk, or altered as they think iit: Pronded, That such works be not permanently injured thereby, or the water or gas pre- vented from flowing as freely and conveniently as before. XIV. The occupier of every house or building in, adjoining, or near to any street shall, within 14 days next after service of an order of the council for that purpose, put up and keep in good condition a shoot or trough of the whole length of such house or building, and shall connect the same either with a similar shoot on the adjoining house, or with a pipe or trunk to be fixed to the front or side of such building from the roof to the ground, to carry the water from the roof thereof in such manner that the water from such house or any portico or projection therefrom shall not fall upon the persons passing along the street, or flow over the footpath.; and in default of compliance with any such order within the period aforesaid, such occupier shall be liable to pay not exceeding $10 for every day that he shall so make default. XV. When building materials or other things are laid, or any hole made, in any of the streets, whether the same be done by order of the council or not, the person or persons causing such materials or other things to be so laid, or such hole to be made, shall, at his own expense, cause a suflflcient light to be fixed in a proper place upon or near the same, and continue such light every night from sun-setting to sun rising, while such materials or hole remain ; and such person shall, at his own expense, cause such materials or other things, and such hole, to be suf- ficiently fenced and inclosed, until such materials or other things are removed, or the hole filled up or otherwise made secure; and every such person who fails to light, fence, or inclose such materials or other thing or such hole shall, for every such offense, be liable to a penalty not ex- ceeding $25, and a further penalty not exceeding $10 for every day while such default is contiuued. XVI. In no case shall any such building materials or other things or such hole be allowed to remain for an unnecessary time, under a pen- alty not exceeding $25 to be paid for every such offense, by the person who causes such materials or other things to be laid, or such hole to be made; and a further penalty not exceeding $10 for every day during which such offense is continued after the conviction for such offence; and in any such case the proof that the time has not exceeded the nec- essary time, shall be upon the person so causing such materials or other things to be laid or causing such hole to be made. XVII. If any building or hole or other place near any street be for want of sufficient repair, protection, or inclosure, dangerous to the passengers along such street, the council shall cause the same to be repaired, pro- tected, or inclosed so as to prevent danger therefrom, and the expenses 192 JUDICIAL EXTEATERKITOEIAL EIGHTS. of such repair, protection, or inclosure shall be repaid to the council by the owner of the premises so repaired, protected, or inclosed, and shall be recoverable from him as damages. XVIII. The council shall cause all the streets, together with the foot- pavements, from time to time, to be properly swept and cleansed, and all dust and filth of every sort found thereon to be collected and re- moved; and shall cause all tlie dust, ashes, and rubbish to be carried away from the houses and tenements of the inhabitants of the town and district within the limits of these regulations at convenient hours and times ; and shall cause the privies and cesspools within the said town or dis trict to be from time to time emptied and cleansed in a sufficient and proper manner : Provided, always, That the occupier of any hoxise or tenement within the limits of these regulations may keep and remove any such soil, ashes, or rubbish as shall be kejtt for manure, so that the same be not a nuisance to the inhabitants residing near such premises ; and that the same be removed at such times and in such manner as shall be approved of by the council. XIX. The council may compound for such time as they think fit with any person liable to sweep or clean any footway, under the provisions of these regulations, for sweeping and cleaning the same in the manner directed by these regulations. XX. If any building or wall be deemed by the surveyor of the coun- cil to be in a ruinous state, and dangerous to passengers or to the occu- piers of the neighborhood, such surveyor shall immediately make com- plaint thereof to the consul of the nation of the person or persons to whom the building belongs, and it shall be lawful for such consul to order the owner, or in his default the occupier (if any) of such building, wall, or other thing, to take down, rebuild, repair, or otherwise secure to the satisfaction of such surveyor, within a time to be fixed by such consul, and in case the same be not taken down, repaired, rebuilt, or otherwise secured in such manner as shall be requisite, and all the ex- penses of putting up every such fence, and of taking down, repairing, rebuilding, or securing such building, wall or other thing, shall be paid by the owner or owuers thereof. XXI. If such owner or owners can be found within the said limits, and if, on demand of the expenses aforesaid, he neglect or refuse to pay the same, then such expenses may be levied by distress, and the con- sul, on the application of the council, may issue his warrant accord- ingly. XXII. If su(5h owner cannot be found within the said limits, or suffi- cient distress of his goods and chatties within the said limits cannot be made, the council, after giving 28 da,ys' notice of their intention to do so by posting a printed or written notice in a conspicious place on such building, or on the land whereon such building stood, by giving notice in the local newspapers under the head of municipal' notification, may take such building or land, sell the same by public auction, and from and out of the proceeds of such sale may reimburse themselves for the outlay incurred, or the council may sell the materials thereof or so much of the same as shall be pulled down, and apply the proceeds of such sale in payment of the expenses incurred in respect of such house or building, and the council shall restore any overplus arising from such sale to the owner of such house or building on demand; nevertheless the council, although they sell such materials for the purposes aforesaid' shall have the same remedies for compelling the payment of so much of the said expenses as may remain due after the application of the pro- JUDICIAL EXTBATERRITOEIAL EIGHTS, 1!)3 ceeds of such sale as are hereinbefore given to them for compelling the ])ayment of the whole of the said expenses. XXIII. The council may give notice to the occupier of any house or building to remove or alter any porch, shed, projecting window, step, cellar, cellar-door or window, sign, signpost, sign-iron, show-board, window-shutter, wall, gate or fence, or any other obstruction or projec- tion erected or placed against or in front of any house or building with- in the limits of the settlement, and which is an obstruction to the safe and convenient passage along any street, and such occupier shall, with- in 14 days after the service of such notice upon him, remove such ob- struction or alter the same in such manner as shall have been directeil by the council, and in default thereof shall be liable to a penalty not exceeding $10, and the council in such case may remove such obstruc- tion or projection, and the expense of such removal shall be paid by the occupier so making default, and shall be recoverable as damages: Pro- vided always, That in the case in which such obstructions or projections were made or put up by the owner, the occupier shall be entitled to de- duct the expense of removing the same from the rent payable by him to the owner of the house or building. XXIV. Xo person shall obstruct the public roads or foot-paths with any kind of goods or building materials under a penalty of $10 for every 24 hours of continued obstruction, and after the first 24 hours' notice of removal shall have been given to the owner of the same or the person using, employing, or having control over the sfinie, or in the absence of any such person, or inability on the part of the agents of the council, shall remove the same and retain the same until the exi^ense of such removal shall have been repaid, or may recover the expense of such re- moval or damages, and may after such recovery sell the same, holding the balance, if any, after payment of penalties, expenses and costs, to the use of the person entitled to the same. And it shall be competent to the council to charge for holdings, scaffoldings placed round buildings in course of erection, interfering with the public highways, on a scale to be hereafter fixed at a meeting of the electors. XXV. All occupiers of land and iiouses shall cause the foot-pavements in front of their houses to be swept and cleansed whenever occasion shall require, and after the receipt of notice served upon them. And they shall also cause to be swept and cleaned all gutters, surface drains in the front, side or rear of their premises, and remove all accumula- tions of soil, ashes or rubbish, and every such occupier making default herein shall for every offense be liable to a penalty of $5. And for the purpose aforesaid, when any house shall be let in apartments, the person letting the same shall be deemed the occupier. XXVI. The council may, from time to time, fix the hours within which only it shall be lawful to empty privies, or remove offensive matter, with- in the limits of the settlement; and when the council have fixed such hours, and given public notice thereof, every person who within the said limits empties or begins to empty any privy, or removes along any thoroughfare within the said limits any offensive matter, at any time except within the hours so fixed; aud also every person who at any time, whether such hours have been fixed by the council or not, use for any such purpose any utensil or pail, or any cart or carriage not having a covering proper for preventing the escape of the contents of such cart, or of the stench thereof, or who willfully slops or spills any such offen- sive matter in the removal thereof, or who does not carefully sweep aud clean every place in which any such offensive matter has been placed, or unavoidably slopped or spilled, shall be liable to a penalty not ex- S. Mis, 89 13 194 JUDICIAL EXTKATEREITOEIAL RIGHTS. ceediug f 10, aud in default of the apprehension of the actual offender, the driver, or person having the (sare of the cart or carriage employed for any such purpose, shall be deemed to be the offender. XXVII. Fo person shall suffer any offensive, waste, or stagnant water to remain in any cellar, or other place within any house belonging to or occupied by him, so as to be a nuisance, within or upon any waste land belonging to or in his occupation within the boundaries of the settle- ment, so as to be a nuisance; and every person who shall suffer any such water to remain for 48 hours after receiving notice of not less than 48 hours from the council to remove the same, and every person who allows the contents of any privy or cesspool to overflow or soak therefrom, to the annoyance of the occupiers of any adjoining propertj% or who keeps any pig or pigs within any dwelling-house within the said limits so as to be a nuisance, shall for every such offense be liable to a penalty not exceeding $10, and to a further penalty not exceeding $2 for every day during which such nuisance continues ; and the council may drain and cleanse out any stagnant pools, ditches, or ponds of water within the said limits so as to be a nuisance, and abate any such nuisance, as afore- said, and for that purpose may enter, by their officers and workmen, into and upon any building or land within the said limits at all reasona- ble times, and to do all necessary acts for any of the purposes aforesaid, and the expenses incurred thereby shall be paid by the person commit- ting such offense, or occupying the building or land where such annoy- ance proceeds; and if there be no occupier, by the owner of such build- ing or land, and shall be recoverable as damages. XXVIII. If the dung or soil of any stable, cow-house or pig-sty, or other collection of refuse matter, elsewhere than iu any farm-yard, be at any time allowed to accumulate within the limits of the settlement for more than seven days, or for more than two days after a quantity exceeding one ton has been collected in any place not allowed by the council, such dung, soil, or refuse, if not removed within 24 hours after notice from any officer of the council for that purpose, shall become the property of the council, and they, or any person with whom they have at the time any subsisting contract for the removal of refuse, may sell and dispose of the same, and the money thence arising shall be applied towards the purposes of the council, or they may recover the expense of such removal from the occupier of the building or land as damages. XXIX. If any officer of health, or if for the time being there be no officer of health, any two surgeons or physicians, or one surgeon and one physician, residing within the limits of the settlement, certify under his or their hands to the council that any accumulation of dung, soil or filth, or other noxious or offensive matter within the said limits, ought to be removed as being injurious to the health of the inhabitants, the secretary of the council shall forthwith give notice to the owner or re- puted owners of such dung, soil or filth, or to the occupier of the land where the same are, to remove the same within 24 hours after such notice; aud in case of failure to comply with such notice, the said dune- soil or filth, shall thereupon become vested in the council, and they, or any person with whom they have at that time contracted for the removal of all such refuse, may sell and dispose of the same, and the money thence arising shall be applied towards the purposes of the council, and they may recover the expense of such removal from such occupier or owner in the same manner as damages. XXX. If at any time the officer of health, or if for the time being there be no officer of health, any two surgeons or physicians or one surgeon and one physician, residing within the said limits, certify under JUDICIAL EXTRATERRITORIAL RIGHTS. 195 his or their hands to the council that any house, or part of any house or building within the limits of the settlement, is in such a filthy or un- wholesome condition that the health of the inmates or of the neighbors is thereby affected or endangered, or that the whitewashing, cleansing or purifying of any house or building, or any part thereof, would tend to proveht or check infectious or contagious disease therein, or that any drain, privy or cesspool, is in such a defective state that the health of the neighbors is thereby affected or endangered, the council shall order the occupier of such house or part thereof to whitewash, cleanse and purify the same, and the owner of such drain, privy or cesspool to amend the condition thereof in such manner and within such time as the council deem reasonable; andif such occupier or owner do notcomply with such order he shall be liable to a penalty not exceeding $10 for every day's neglect thereof; and in such case the council may cause such house or any part thereof to be whitewashed, cleansed and purified, or the condition of such drain, privy or cesspool, to be amended, and may recover the expense thereof from such occupier or owner in the same manner as damages. XXXI. If any candle-house, melting-house, melting-place, or soap- house, or any slaughter-house, or any building or place for boiling offal, or blood, or for boiling or crushing bones, or any pig-sty, necessary-house, dunghill, manure heap, or any manufactory, building, orplaceof business within the limits of the settlement, be at any titne certified to the council by the inspector of nuisances, or ofi&cer of health ; or if for the time being there be no inspector of nuisances or officer of health, by any two sur- geons and physicians, or one surgeon and one physician, to be a nuisance or injurious to the health of the inhabitants, the council shall direct complaint to be made before the consul of the nation of the person by or on whose behalf the work complained of is carried on, and such consul shall inquire into such complaint, and may, by an order in writing under his hand, order such person to discontinue or remedy the nuisance with- in such time as to him shall appear expedient: Provided alivays, That it appear to such consul that in carrying on any business complained of, the best means then known to be available for mitigating the nuisance, of the injitrious effects .of such business, have not been adopted, they may suspend their final determination, upon condition that the person so complained against shall undertake to adopt within a reasonable time such means as the said consul shall judge to be practicable, and order to be carried into effect for mitigating or preventing the injurious effects of such business. XXXII. Every occupier of any building or land within the said limits, and every other person who refuses to permit the said scavengers to remove such dirt, ashes, or rubbish, as by these by-laws they are au- thorized to do, or who obstruct the said scavengers in the performance of their duty, shall, for every such offense, be liable to a penalty not exceeding $25. XXXIII. No straw shed, bamboo houses, or buildings of like inflam- mable material, shall be erected within the settlement; nor shall con- traband goods or merchandise likely to endanger life, or cause injury to individuals, such as gunpowder, saltpeter, sulphur, large quantity of spirits in bulk, petroleum, naphtha, and other explosive gases or liquids, stand on the premises of any individual, under the penalty of $250 for the first offense, and of $500, with confiscation of the goods themselves to the use of the council, for each succeeding offense. On articles of this nature being brought into the settlement immediate notice must be given by the importer, consignee, or owner thereof to the secretary of 196 JUDICIAL EXTRATERRITORIAL EIGHTS. the council, whose duty it will be to assign the locality or place within which such goods may be safely stored, and every refusal to obey, or disobedience of the order of the secretary in this behalf, shall be visited with a penalty of $250, and a penalty of $100 for every 24 hours of con- tinued disobedience. And such penalty, together with the preceding penalty, and all other fines and penalties declared by these by-laws, shall be recoverable in a summary manner before the consul or court having jurisdiction over the ottender or defaulter. XXXIV. Xo foreigner or Chinese shall vend spirits or liquors of any kind or description, or open a house of public entertainment, music hall, theater, circus, or dancing saloon within the limits of the settlement, without a license first obtained from the council, and in the case of foreigners countersigned by the consul of the nationality to which the applicant belongs, and upon good and suf&cient security given for the maintenance of order in such establishment, and in respect of such licenses the council njay charge on such scale as may be authorized at the lawful meetings held under the regulations: For every wine and spirit sboj), annually. For every beer shop, annually. For a house of entertainment, hotel, or tavern, annually. Music hall, for every night open. Theater, for every night open. Circus, for every night open. Dancing saloon, for every night open. And any person opening or keeping, or holding any such shop, store, house of entertainment, music hall, theater, circus, or dancing hall, without having first obtained the license of the council, shall, over and above the cost of the license aud summons, be liable to a fine not ex- ceeding $50. XXXV. All persons firing guns or pistols, causelessly creating a noise or disturbance, aud all persons guilty of furious or improper riding or driving, or the leading of horses up ;ind down any thoroughfare for exercise, or who shall commit any act which may legitimately come within the meaning of the term nuisance, shall be liable to a penalty of XXXVI. All persons driving carriages or carts of any description be- tween one hour after sunset and one hour before sunrise must affix lighted lamps to their vehicles, under penalty of five dollars for each omission. XXXVII. No person within the limits of the settlements, except con- sular officers and the oflQcers of the council duly authorized, and military and naval officers, or volunteers, or soldiers, or soldiers of any govern- ment force in uniform or on duty, shall under any pretense carry offen- sive or defensive arms, such as guns, pistols, swords, daggers,'loaded sticks, slung-shots, knives, or any weapon of like character, under a penalty not exceeding $10, or one week's imprisonment, with or with- out hard labor: Provided, That nothing in this by-law be construed to extend to the carrying of fowling-pieces for the "purpose of shooting game. XXXVIII. It shall be lawful for any officer or agent of the council, and all persons called by him to his assistance, to seize and detain any person who shall have committed any oftense against the provisions of these by-laws, and whose name and residence shall be unknown to such officer or agent, and convey him, with all convenient dispatch, before his proper consul, without any warrant or other authority than these by-laws. JUDICIAL EXTRATEERITOEIAL RIGHTS. 197 XXXIX. If any such nuisance, or the cause of any such injurious effects as aforesaid, be not discontinued or remedied within such time as shall be ordered by the said consul, the person by or on whose behalf the business causing such nuisance is carried on shall be liable to a penalty not exceeding $25 for every day during which such nuisance shall be continued or unremedied after the expiration of such time as aforesaid. XL. Nothing in these by-lays contained shall be construed to render lawful any act or omission on the part of any person which is or would be deemed to be a nuisance at common law, from pi'osecution or action in respect thereof, according to the forms of proceeding at common law, nor from the consequences upon being convicted thereof. XLI. Every penalty or forfeiture imposed by these by-laws, made in pursuance thereof, the recovery of which is not otherwise provided for, may be recovered by summary proceeding before the proper consular representative, and it shall be lawful for such consular representative, upon conviction, to adjudge the offender to pay the penalty or forfeiture incurred, as well as such costs attending the conviction, as such consu- lar representative shall think fit. XLII. These by-laws shall be printed, and the secretary of the council shall deliver a printed copy thereof to every rate-payer applying for the same, without charge ; and a copy thereof shall be hung up in the front or in some conspicuous part of the principal office of the council. APPENDIX XI. Mr. Fish to Mr. Bingham. Department of State, Washington, January 20, 1876. Sir: Your dispatch of the 18th of November, last, No. 291, in relation to the right of the municipal council of Nagasaki to maintain actions in the consular court of the United States against American citizens for liabilities accruing on account of non-observance of municipal ordi- nances by the latter, has been received. It appears from your dispatch and the inclosures accompanying it that the council referred to is a body composed of foreign consuls and jjrorainent foreigners of different nationalities, resident in what is known as the "foreign quarter" in Nagasaki, that it owes its existence and creation to the voluntary action of the foreign population, or at least to that portion of the foreign population who come under the denomination of "land-renters," and that the regulations or ordinances of this muni- cipal council are confined within the legislative limits of the preserva- tion of the peace, morals, and good order of the community. These objects are clearly within the scope of the legislative functions ordinarily pertaining to municipal corporations, and the licensing of l)ublic houses or places of public entertainment and resort is a very com- . nion exercise of the power of such corporations. You refer to your dispatch No. 228, of the 20th of May, 1875, in which you forward a copy of the Nagasaki regulations. Upon examination it is found that the correspondence of which that dispatch forms a part related to the power of United States consuls in China and Japan to make rules and regulations which should have the force of law over cit- 198 JUDICIAL EXTRATEREITORIAL BIGHTS. izens of the United States resident in those countries, and the observ- nnce of which might be enforced in the consular courts. In your No. 158, of the 4th of December, 1874, you inform the Department of the then recent receipt by you of a communication from Mr. Van Buren, consul-general, asking your consent to the enactment of such regula- tions of the consular board at Yokohama, and at the same time state that you did not give your consent, for the reason that in your opinion such powers of legislation were not conferred upon either the consuls or ministers of this government under the laws of the United States, and that the exercise of such a power would be beyond the scope of the legitimate functions of these officers. The opinion thus expressed by you met with the approval of the Department, and was found to be in accord with its previously expressed views on that question, and you were so instructed in my No. 115, of the 7th of January, 1876. In the same instruction you were requested to inform the Department what powers, if any, were claimed by the consular board, as such, to make such regulations, and whether the power spoken of was claimed by the several consuls to have been conferred by their separate governments, and what authority in regard to such questions had been conferred by the other treaty powers upon their ministers in Japan. Your dispatch No. 228 was in reply to that instruction, and you for- ward with it a copy of regu'ations adopted by a convention ol foreign consuls, held at Yedo, in October, 1867, a copy of rules and ri gulations adopted by the land-renters at Nagasaki, in September, 1860, and also a copy of a communication received by Mr. Van Buren, from Sir Harry S. Parkes, Her Britannic Majesty's minister, setting forth the grounds upon which the consuls of Great Britain claimed the right ot exercising the qvasi legislative powers referred to. Upon the perusal of your re- port no grounds were perceived for departing from the views which had been expressed by you and approved by the Department, inasmuch as the act of Congress regulating the exercise of the extraterritorial judi- cial powers accorded in the treaties with Japan and China provides that the proceedings shall be governed by the laws of the United States, the common law, and the law of equity and admiralty, and when these failed to afford an adequate remedy, then by such regulations as should be made and promulgated by the ministers of the tJnited States resident in those countries. These provisions of the statute of the United States are not under- stood to confer upon the minister any power of general legislation (as commonly understoorl), but simply the power of supplying decrees and regulations to supply any defects in the mode of exercising the jurisdic- tion which the statutes and treaties gave to the consular courts. With" us at home, our courts cannot legislate, cannot make laws, but may make regulations controlling the practice and the mode of their administering and enforcing the laws. When the statutes of the tJnited States, the common law, and the law of equity and admiralty fail to furnish sufQ- cient reuiedies for the exercise of the jurisdiction which the statute con- fers on the consular courts in Japan, China, &c., the minister may sup- ply the deficiency. Such is understood to be the extent of legislative power, if even this can properly be called "legislative power," which is given to either minister or consul by the statute. No power is given to the minister to make a regulation which will establish or impair the rights existing between parties to create or impose new obligations on citizens. He is confined to making regulations which will enable the established courts to administer justice between parties according to existing laws, and to punish those who offend against the laws. Judicial EXTKATERRiTOErAL rights. 199 The question now presented, however,. is conceived to be difl'erent. It is not a question of general legislation, but one of local corporate municipal enactment of ordinances or regulations for the preservation of the peace, morals, and good order of the town or municipal commu- nity, and confined to such objects as the wants and necessities of that particular community may demand ; it is the exercise of a power known to exist in the municipal authorities of the cities and towns throughout the United States, resting, it is true, in the latter case, upon municipal charters granted by the supreme legislative power of the State. But instances are not wanting in the history of this government in which similar powers have been exercised by Inchoate communities suddenly formed within the jurisdiction of the United States, and who, for the time being, finding themselves situated outside of any organized State or Territory, have been led by the dictates of prudence and necessity to form themselves into a voluntary political organization, frame codes of laws for the preservation of order and good government and the pro- tection of the lives and property of the individuals composing such com- munities, and to establish tribunals for the administration and enforce- ment of such laws; and the laws enacted, administered, and executed under such conditions have, so far as is now known, been respected and Sductioned by both the executive and judicial branches of the Govern- ment ot the United States, as it is believed they have been by the judi- cial tribunals of the several States of the Union. If, in the case of the residents of what is known as the "foreign quarter" of Ifagasaki, the Government of Japan, in its concession of the territory foi' that purpose, conferred upon the foreigners' residing within such territory the right of such local municipal legislation, or if, in the absence of any direct grant, that government offered no objection to such lo(!al ariangement, and cast upon the inhabitants the dutyx)f providing for the general police of the " quarter," such as lighting, pav- ing, sanitary arrangements, and the preservation of the public peace and good order, it would seem to follow that regu'ations and ordinances enacted and promulgated by a council selected by the people in such manner as they had mutually agreed upcm, should be accepted as the municipal law of the community, have the force and effect of law, and that their observance might be enforced bj' proper i^roceedings in the consular courts, subject to the ordinary conditions governing the juris- diction of these tribunals; and if the correctness of this proposition is admitted, there cannot, it is believed, be any doubt of the right of the municipal council to maintain an action in the consular couit for the recovery of a i)enalty incurred by a failure to pay a public-house license imposed by one of these regulations. As the Department is without full infoimation on this point, it is desired that you will, with as little delay as convenient, transmit such information as you are now in pos- session of, or may be able to obtain, as to the precise nature and extent of the powers granted or conceded by the Japanese Government to the residents of the "foreign quarter" at ISTagasaki. But even in the absence of any such express grant from the authori- ties of Jajpan, I am unable to concur in the opinion expressed by you that the regulations or ordinances of the muTiicipal council should not be recognized as binding upon citizens of the United States resident in that community. American citizens, in common with the citizens and subjects of other foreign powers composing the population, enjoy all the rights and privileges pertaining to such residence or domicile, and they share in the common protection afforded to persons and property in the 200 JUDICIAL EXTEATEERITORIAL RIGHTS. advantages and conveniences resulting from such regulations as provide for the lighting, paving, cleansing, and other sanitary measures for the general welfare of the municipality. They are there voluntarily, it is to be presumed, for the advancement of their own interest; while they share the benefits of a regulated police, they should not be free from the charges of its support, or from its control. The police supervision of places of public entertainment, or of public amusement, is among the essentials of a well regulated, orderly commu- nity, and the income derived from licenses for keeping houses of public entertainment constitutes, it may be supposed, a not unimportant part of the municipal revenue upon which the council must rely to meet the expenses incirlent to such arrangements. The granting of such licenses is within the scope of the necessary power incident to municipal corpo- rations, and the attempt to exercise the power itself would prove futile if the correlative authority to enforce its observance by a resort to ordi- nary legal remedies is denied to the municipal council. A refusal of the consular court to entertain jurisdiction in a suit for the recovery of the license-fee would partake of the nature of a decision before hearing. I am not aware of any reason why a citizen of the United States, resi- dent in Japan, may not be brought into court at the suit of any person or set of persons who think they have a valid claim against him. The statutes of the United States do not exclude any parties from becoming plaintiff in these courts against a citizen of the United States found within their jurisdiction. He may there i)lead against the competence of the parties to sue hiin, or present such other defense as he may think proper against their right of recovery. In the case referred to it is con- ceived that he might even raise the question of the validity of the regu- lations under which the license-fee is demanded; but it is not perceived that the court should exclude the plaintiff and deny its process against one amenable to its jurisdiction on the presupposition that the right, which the plaintiff desires to establish, is unfounded. Mr. Smith is an American citizen, resident in Japan. He can be held answerable only in the extraterritorial judicial tribunals of his own country, established in Japan under treaty provisions. It is thus seen that the refusal of the United States consular court to entertain juris- diction of the cause preferred by the municipal council against Mr. Smith, in effect leaves the complainant in that case without remedy, and amounts to a practical denial of justice. In view, however, of the im[)erfect information at present before the Department on the question of the source and origin of the powers claimed by the municipal council, it is not proposed to give you defi- nite and final instructions in relation to the future course to be pursued until such additional information as you may be able to obtain in regard to that question shall have been imparted. I am, &c., HAMILTON FISH. JUDICIAL EXTRATERRITOKIAL RIGHTS. 201 APPENDIX XII. CONVENTION RELATING TO THE GOVERNMENT OF APIA. [Sept. 2, 1879.] Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the King and Government (Malo) of Samoa being desirous to make better provision for the good government of the town and dis- trict of Apia, and the preservation of peace and good order therein, as well as for the maintenance of its neutrality should internal disturb- ances unhappily take place in the Samoan State, have determined to conclude a convention for that purpose, and have named as their pleni- potentiaries — Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, &c. ; the Honorable Sir Arthur Hamilton Gordon, Knight Grand Gross of the Most Distinguished Order of St. Michael and St. George; Her Majesty's High Commissioner and Consul General for the Western Pacific, Governor of Fiji ; and Alfred Perceval Maudslay, esq., one of Her Britannic Majesty's Deputy Commissioners for the Western Pacific; and the King and Government (Malo) of Samoa, the High Chief MaJletoa Laupepe, and the High Chief Saga: Who, having met and conferred with the representatives at Apia of other nations having entered into treaty relations with Samoa, that is to say, Corvetten-Capitain F. Mensing, Imperial German I^Tavy, command- ing His Imperial German Majesty's gun vessel Albatross ; Theodor Weber, esq.. Imperial German Consul for Samoa and Tonga; Captain Ralph Chandler, United States Navy, commanding the United States steamship Lackawanna, and Thomas M. Dawson, esq., Consul of the United States of America at Apia, have, in conjunction with them, agreed upon and concluded the following articles : Article I. The space comprised within the following limits, that is to say, com- mencing at Vailoa, thence along the coast to the mouth of the Puluasu River, thence up the course of the Fuluasu River to the point at which the Alaafalava road crosses such river, thence along the said road to the point where it reaches the river Vaisigo, and thence in a straight line to the point of commencement at Vailoa, shall constitute and be known as the town and district of Apia. The waters of the harbor of Apia are also comprehended within the district. Article. II. Such town and district shall be placed under the government of a municipal board consisting of those foreign consuls resident in Apia, whose nations have entered into treaty relations with Samoa. Repre- sentatives of every such nation having a consul at Samoa shall at a fiiture period be added to the said board, and shall be chosen in such manner and exercise such functions as may be provided by regulations to be hereafter agreed upon, and published by the said board. 202 JUDICIAL EXTRATERRITORIAL RIGHTS. Article III. The municipal board shall have power to make and enforce regulations and by-laws with regard to police and good order, public works, sani- tary regulations, the issue of licenses, the imposition of harbor regula- tions, the prevention of the sale and supply of spirituous liquors to Samoans and other islanders of the Pacific Ocean, and other similar matters within the said district, and such regulations shall be binding upon all persons within the said district, and may be enforced by penal- ties not exceeding two hundred dollars fine, or imprisonment with hard labor for a period not exceeding six months, or both fine and imprison- ment not exceeding the before-mentioned penalties. Article IV. The municipal board of Apia may, for the purpose of defraying ex- penses incurred under the above articles, levy rates upon the occupiers of houses or lands within the district of Apia, not exceeding five per cent, annually on the annual assessed value of such premises, as calcu- lated on the presumed rental valuation thereof, or one per cent, annually on the real value of such property. Article V. All offenses against the regulations of the municipal board, by whom- soever committed, shall be tried by a magistrate to be appointed by the board. Article VI. If a subject or citizen of any of the contracting parties in Apia be charged with an offense against the laws of his own country, he shall be tried according to the jurisdiction provided therefor by the legislation of the nation to which he belongs, or according to the stipulations of the treaty concluded between his nation and Samoa. Article VII. Every Samoan subject charged with a criminal offense within the limits of the district of Apia, other than an offense against the muni- cipal regulations, shall be liable to trial by the magistrate appointed under the provisions of Article V in conjunction with a Samoan magis- trate. Article VIII. The foregoing articles shall in no way prejudice the territorial integ- rity of Samoa, and the Samoan flag shall be hoisted at such place of meeting of the municipal board as may be permanently adopted. Article IX. In case of civil war, the town and district of Apia, and the adjacent distncts compnsed between the boundaries of the town and district of Apia and Letogo, Tiapepe Point, and Sinsega, shall be considered as JUDICIAL EXTEATEREITORIAL EIGHTS. 203 neutral territory, and the municipal board may frame and issue such regulations as may be considered necessary for the support and main- tenance of such neutrality. Article X. The present convention shall be revised at the end of four years from its date, and if the internal state of Samoa at that time will happily ad- mit thereof, without prejudice to the interests of foreign residents in Samoa, the poweis conferred by the present convention upon the muni- cipal board of Ajiia shall cease and determine, and the district again pass under the control and authority of the Samoan Government, or such other authority as may be agreed upon between the Samoan Gov- ernment and the high contracting parties. Article XI. The representatives of the Imperial German Government, in virtue of the powers accorded to them by the eighth article of the treaty concluded between His Imperial Majesty the German Emperor and the Government of Samoa, on the twenty-fourth day of January last past, accede and agree to the present convention on behalf of the Imperial German Gov- ernment, subject to the conditions of the said article. Article XII. The representatives of the United States Government provisionally accede and assent to the present convention on behalf of the Govern- ment of the United States, subject to the approval of that government. Article XIII. The present convention shall be ratified, and the ratification exchanged at Apia within one year from the date thereof. In witness whereof we have signed the same and afftxed thereto our seals. Done at Apia this second day of September, in the year of our Lord one thousand eight hundred and seventy-nine. ARTHUR GORDON. ALFRED P. MAUDSLAY. MALIETOA LAUPEPA. SAGA 0. AUAUNA. Ralph Chandler, Captain U. S. Navy, Commanding U. S. Ship Lackau-anna. Thomas M. Dawson. P. Mensing, Corvetten- Gapitain. T. Weber. 204 JUDICIAL EXTRATERRITORIAL RIGHTS. APPENDIX XIII. PROVISIONS IN TREATIES AND CONVENTIONS CONFERRING RIGHTS OF EXTRATERRITORIALITY UPON THE UNITED STATES. I. — Algiers. Tlie treaties with Algiers of September 5, 1795, June 30, 1815, and liecember 22, 1816, are abrogated by the annexation of that country to France. In substance they made the consul the court for civil suits between Americans ; empowered him to act as part of a mixed court in civil suits between Americans and the citizens or subjects of other powers; and i^rovided that Americans were to answer for criminal offenses in the courts of'the countryj the consul assisting. II. — Borneo. Treaty of June 23, 1850. Article IX. His highness the Sultan of Borneo agrees that in all cases where a citizen of the United States shall be accused of any crime committed in any part of his highness's dominions, the person so accused shall be exclusively tried and adjudged by the American consul, or other oflcer duly appointed for that purpose ; and in all cases where disputes or dif- ferences may arise between American citizens, or between American citizens and the subjects of his highness, or between American citizens and the citizens or subjects of any other foreign power in the dominions of the Sultan of Borneo, the American consul, or other duly appointed officer, shall have power to hear and decide the same, without any in- terference, molestation, or hinderance on the part of any authority of Borneo, either before, during, or after the litigation. III.— China. Treaty of July 3, 1844. Article XV The Chinese Government will not hold itself i'esponsible for any debts which may happen to be due from subjects of China to the citizens of the United States, or for frauds committed by them ; but citizens of the United States may seek redress in law ; and on suitable representation being made to the Chinese local authorities through the consul, they will cause due examination in the premises, and take all proper steps to compel satisfaction. But in case the debtor be dead, or without pro- ]ierty, or have absconded, the creditor cannot be indemnified according to the old system of the cohoug, so called. And if citizens of the United States be indebted to subjects of China, the latter may seek redress in the same way through the consul, but without any responsibility for the debt on the part of the United States. JUDICIAL EXTRATERRITORIAL RIGHTS. 205 Article XXI. Subjects of China who may be guilty of any criminal act toward citizens of the United States shall be arrested and punished by the Chinese authorities according to the laws of China ; and 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. And in order to the prevention of all controversy and disaffec- tion, justice shall be equitably and impartially administered on both sides. Article XXIV. If citizens of the United States have special occasion to address any communication to the Chinese local officers of government, they shall submit the same to their consul, or other officer, to determine if the lan- guage be proper and respectful, and the matter just and right; in which event he shall transmit the same to the appropriate authorities for their consideration and action in the premises. In like manner, if subjects of China have special occasion to address the consul of the United States, they shall submit the communication to the local authorities of their own government, to determine if the language be respectful and proper, and the matter just and right; in which case the said authorities will trans- mit the same to the consul, or other officer, for his consideration aiid ac- tion in the premises. And if cbntroversies arise 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 conjunc- tion. Article XXV. All questions in regard to rights, whether of property or person, aris- ing between citizens of the United States in China, shall be subject to the jurisdiction, and regulated by the authorities of their own govern- ment. And all controversies occurring in China' between citizens of the United States and the subjscts of any other government shall be regu- lated by the treaties existing between the United States and such gov- ernments, respectively, without interference on the part of China. Treaty of June 18, 1858. Article XI. All citizens of the United States of America in China, peaceably at- tending to their affairs, being placed on a common footing of amity and good-will with the subjects of China, shall receive and enjoy for them- selves and everything a])pertaining to them, the protection of the local au- thorities of government, who shall defend them from all insult or injury of any sort. If their dwellings or property be threatened or attacked by mobs, incendiaries, or other violent or lawless persons, the local officers, on requisition of the consul, shall immediately dispatch a military force to disperse the rioters, apprehend the guilty individuals, and punish them with the utmost rigor of the law. Subjects of China guilty of any crim- inal act toward citizens of the United States shall be punished by the Chinese authorities according to the laws of China ; and citizens of the United States, either on shore or in any merchant vessel, who may insult, trouble, or wound the persons or injure the property of Chinese, or com- 206 JUDICIAL EXTEATEEEITORIAL EIGHTS. mit any other improper act in China, shall be punished only by the con- sul or other public functionary thereto authorized, according to the laws of the United States. Arrests in order to trial may be made by either the Chinese or the United States authorities. Aetiole XXIV. Where there are debts due by subjects of China to citizens of the United States, the latter may seek redress in law ; and, on suitable rep- resentations being made to the local authorities, through the consul, they will cause due examination in the premises, and take proper steps to compel satisfaction. And if citizens of the United States be in- debted to subjects of China, the latter may seek redress by represen- tation through the consul, or by suit in the consular court ; but neither government will hold itself responsible for such debts. IV.— Japan.* Treaty of June 17, 1857. Aetiole IV. Americans committing offenses in Japan shall be tried by the Ameri- can consul general or consul, and shall be punished according to Ameri- can laws. Japanese committing offenses against Americans shall be tried by the Japanese authorities, and punished according to Japanese laws. Treaty of July 29, 1858. Aetiole VI. Americans committing offenses against Japanese shall be tried in American consular courts, and when guilty shall be punished according to American law, Japanese committing offenses against Americans shall be tried by the Japanese authorities and punished according to Japanese law. The consular courts shall be open to Japanese creditors, to enable them to recover their just claims against American citizens, and the Japanese courts shall in like manner be open to American cit- izens for the recovery of their just claims against Japanese. All claims for forfeitures or penalties for violations of this treaty, or of the articles regulating trade which are appended hereunto, shall be sued for in the consular courts, and all recoveries shall be delivered to the Japanese authorities. Neither the American or Japanese goverments are to bt^ held respon- sible for the payment of any debts contracted by their respective citizens or subjects. V. — Madagasoae. Treaty of February 1 4, 1867. Aetiole V. Citizens of the U. S. who enter Madagascar, and subjects of Her Maj- esty the Queen of Madagascar, while sojourning in America., are subject 'No note is made of the twelfth article of the treaty of November U 1778 with Prance. In practicethe extraterritorial jurisdiction conferred by that treaty was dur ing the short [time that the treaty was in force, practically construed as confined to manners. JUDICIAL EXTRATEKEITOEIAL RIGHTS. 207 to the laws of trade and commerce in the respective countries. In regard to civil rights, however, whether of person or property, of American citi- zens, or in cases of criminal offenses, they shall be under the exclusive civil and criminal jurisdiction of their own consul only, duly invested with the necessary powers. But should any American citizen be guilty of a. serious criminal of- fense against the laws of Madagascar, he shall be liable to banishment from the country. All disputes and differences arising within the dominions of Her Maj- esty between citizens of the U. S. and subjects of Madagascar shall be decided before the U. S. consul and an officer duly authorized by Her Majesty's government, who shall afford mutual assistance and every facility to each other in recovering debts. VI. — Morocco. Treaty of September 16, 1836. Article XX. If any of the citizens of the United States, or any persons undertheir protection, shall have any dispute with each other, the consul shall de- cide between the parties; ajad whenever the consul shall require any aid or assistance from our government to enforce his decisions, it shall be immediately granted to him. Article XXI. If a citizen of the United States should kill or wound a Moor, or, on the contrary, if a Moor shall kill or wound a citizen of the United States, the law of the country shall take place, and equal justice shall be ren- dered, the consul assisting at the trial; and if any delinquent shall make his escape, the consul shall not be answerable for him in any manner whatever. YII.— Muscat. Treaty of Septeniber 21, 1833. Article IX. The President of the United States may appoint consuls to reside in the ports of the Sultan where the principal commerce shall be carried on, which consuls shall be the exclusive judges of all disputes or suits wherein, American citizens shall be engaged with each other. They shall have power to receive the property of any American citizen dying within the kingdom, and to send the same to his heirs, first paying all his debts due to the subjects of the Sultan. The said consuls shall not be arrested, nor shall their property be seized, nor shall any of their household be arrested, but their persons and property and their houses shall be inviolate. Should any consul, however, commit any offense against the laws of the kingdom, complaint shall be made to the Presi- dent, who will immediately displace him. 208 JUDICIAL EXTRATEERITORIAL RIGHTS. YIII.— Persia. Treaty of December 13, 1856. Article Y. All suits and disputes arising in Persia between Persian subjects and citizens of the United States shall be carried before the Persian tribunal to which such matters are usually referred at the place where a consul or agent of the United States may reside, and shall be discussed and decided according to equity, in the presence of an employ^ of the consul or agent of the United States. All suits and disputes which may arise in the Empire of Persia be- tween citizens of the United States shall be referred entirely for trial and for adjudication to the consul or agent of the United States resid- ing in the province wherein such suits and disputes may have arisen, or in the province nearest to it, who shall decide them according to the laws of the United States. All suits and disputes occurring in Persia between the citizens of the United States and the subjects of other foreign powers, shall be tried and adjudicated by the intermediation of their respective consuls or agents. In the United States, Persian subjects, in all disputes arising between themselves, or between them and citizens of the United States or for- eigners, shall be judged according to the rules adopted in the United States respecting the subjects of the most favored nation. Persian subjects residing in the United States, and citizens of the United States residing in Persia, shall, when charged with criminal offenses, be tried and judged in Persia and the United States in the same manner as are the subjects aud citizens of the most favored nation residing in either of the above-mentioned countries. IX. — Samoa. Treaty of January 17, 1878. Article IY. All disputes between citizens of the United States in the Samoan Islands, whether relating to civil matters or to offenses or crimes, shall be heard and determined by the consul of the United States at Apia, Samoa, under such regulations and limitations as the United States may provide; and all disputes between citizens of the United States and the people of those Islands shall be heard by that consul in conjunction with such ofQeer of the Saraoan Government as may be designated for that purpose. Crimes and offenses in cases where citizens of the United States may be convicted shall be punished according to the laws of their country; and in cases where the people of the Samoan Islands may be convicted, they shall be punished pursuant to Samoan laws and by the authorities of that country. X. — Tripoli. Treaty of June 4, 1805. Article XYIII. If any of the citizens of the United States, or any ))ersous under their protection, shall have any disputes with each other, the consul shall de. .TUDICIAL EXTKAIEEEITORIAL RIGHTS. 209 cide between the parties, and whenever the consul shall require any aid or assistance from the government of Tripoli to enforce his decisions, it shall immediately be granted to him, and if any dispute shall arise be- tween any citizen of the United States and the citizens or subjects of any other nation having a consul or agent in Tripoli, such disputes shall be settled by the consuls or agents of the respective nations. Akticle XIX. If a citizen of the United States should kill or wound a Tripoline, or, on the contrary, if a Tripoline shall kill or wound a citizen of the United States, the law of the country shall take phice, and equal justice shall be rendered, the consul assisting at the trial; and if any delin- quent shall make his escape, the consul shall not be answerable for him in any manner whatever. XI.— Tunis. Treaty of August, 1797. Article XX. The consul shall be the judge in all disputes between his fellow-citi- zens or subjects, as also between all other persons who may be imme- diately under his protection ; and in all cases wherein he shall require the assistance of the government where he resides to sanction his de- cisions, it shall be granted to him. Article XXI. If a citizen or subject of one of the parties shall kill, wound, or strike a citizen or subject of the other, justice shall be done according to the laws of the country where the offense shall be committed : The consul shall be present at the trial ; but if any offender shall escape, the con- sul shall be in no manner responsible for it. Article XXII. If a dispute or law-suit on commercial or other civil matters shall happen, the trial shall be had in the presence of the consul, or of a con- fidential person of his choice, who shall represent him, and endeavor to accommodate the difference which may have happened between the citi- zens or subjects of the two nations. XII.— Turkey. Treaty of May 7, 1830. Article IV. If litigations and disputes should arise between the subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, uor shall judgments be pronounced unless the Aujerican Drago- man be present. Causes in which the sum may exceed five hundred piastres, shall be submitted to the Sublime Porte, to be decided acicord- iag to the laws of equity and justice. Citizens of the United States of America, quietly pursuing their commerce, and not beiug charged or convicted of any crime or offense, shall not be molested ; and even when they may have committed some offense they shall not be arrested and put in prison, by the local authorities, but they shall be tried by their minister or consul, and punished according to their offense, following, in this respect, the usage observed toward other Franks. S. Mis. 89 14 210 JUDICIAL EXTRATERRITORIAL EIGHTS. APPENDIX XIV. DEAFT OF THE PROPOSED ACT. AN ACT concerning the exercise of the jurisfliotiou conferred upon the United States in places out of their territory and dominion, and to amend the Revised Statutes from sections 4082 to 4130 inclusive. Be it enacted by the Senate and Rouse of Representatives in Congress as- sembled, The jurisdictiou which the United States now h-Ave, or hereaf- ter may have and enjoy by treaty, custom, usage, or otherwise in coun- tries or places out of their territory or dominion, so far as the same is judicial, shall be exercised through and by the courts herein provided for, each of which shall be a court of record. Sec. 2. In China and Japan it shall be exercised through and by con- sular courts, district courts, and one supreme court, each of which shall be a court of record with a seal under the provisions of this act, and of sections 4082 to 4130 of the Kevised Statutes, both inclusive, as the same are amended and changed hereby. Sec. 3. The consular courts in China and Japan and the grades and ranks of the officers thereof shall be as now established, except as changed hereby. The person authorized to hold such a court is the prin- cipal consular ofQcer of the district, holding a commission from the Presi- dent according to law ; or in his absence the vice-consul holding the warrant of the Secretary of State; or in the absence of both, the per- son acting as consul with the written consent and approval of the prin- cipal diplomatic representative of the United States in the country. Tlie Secretary of State shall assign to each consulate in China and Ja- pan a consular clerk who shall also act as clerk of the consular court, and as a master in chancery. And for this purpose the number of con- sular clerks authorized by section 1704 of the Eevised Statutes is in- creased to twenty-five. Such consular clerk shall have the custody of the seal and records, with the usual powers and duties of the clerk of a court of record, and shall also be under the consul in his consular ca- pacity, and shall execute a bond to the United States for the faithful discharge of his duties, in such amount as shall be fixed by the Secre- tary of State, and with sureties who shall be approved by the court. Sec. 4. The consular oflHcers authorized to hold such courts shall con- tinue to have the power as fully as they now have, to issue warrants, and cause to be arrested, citizens of the United States charged with the commission of misdejucanors, offenses, or crimes. When it appears that the offense or crime has been committed within another consular district they may, oji the requisition of the consul of the district within which the crime was connnitted, send the offender in custody to the consul making the requisition, or require him to give security for his appearance there. When it is charged that the misdemeanor, offence, or crime was committed within the consul's district, the consular court may take jurisdiction of, try, and punish, citizens of the United States so charged, when the offence is not punishable with death, in the same way that such courts have been used to do, except that when the mis- demeanor, offence, or crime charged is punishable by imprisonment for more than six months, or by fine exceeding two hundred dollars, a jury JUDICIAL EXTEATEERITORIA.L RIGHTS. 211 shall be had to try the facts, and a re\dew may be had in the proper district court on the rulings of tbe consular court on questions of law. Said consular courts shall have original jurisdiction in civil cases as provided in section 4107 of the Revised Statutes, except that in all cases where more than two hundred dollars is involved a jury may be summoned when desired by either party, in which case the jury shall be judges of the facts. All provisions authorizing appeals from consulfu- courts to a minister or other diph)matic ofRcer, or to the circuit court for the district of Cali- fornia, are hereby repealed. The rulings of a consular court in civil cases, whether held by a consul alone, or with associates on questijous of law, may be reviewed in the district court within which the consular district is situated, when the amount in controversy, exclusive of costs, exceeds five hundred dollars, or when the court certifies that the case involves legal perplexities and should be reviewed. Seo. 5. There shall be appointed by the President, by and with the advice and consent of the Senate, a district judge of the United States for China and a district judge of the United States for Japan, whose terms of office shall be eight years respectively, and in case of vacancies the persons appointed to the place, from time to time, shall hold office for like terms. Ench judge shall receive compensation at the rate of five thousand dollars a year, payable monthly, and his necessary trav- eling expenses in the discharge of his dutj^, payable on his own voucher at the rate of eight cents a mile, hotel lodging and board bills being excluded and not to be paid. The consular districts of Canton, Amoy, and Swatow shall constitute the first judicial district, with the seat of the court at Canton. The consular districts of Shanghai, Niiigpo, Chin-Kiang, and Foo-Chow shall constitute the second judicial district with the seat of the court at Shanghai. The consular districts of Tien-Tsin and ]!!l'ewChwang shall constitute the third judicial district, with the seat of the court at Tien- Tsin. And the consular districts within the Empire of Japan shall con- stitute the fourth judicial district with the seat of the court at Yokahama. But the Secretary of State may, from time to time, change these dis- tricts, as convenience may require. The President may also, by and with the advice and consent of the Senate, appoint a clerk for the district courts held by the district judge for China, who shall have his principal office at Shanghai, and shall also be the clerk of the supreme court for China, and a clerk for the district courts held by the district judge for Japan, who shall have his lirincipal office at Yokahama, and shall also be the clerk of the supreme court for Japan. Epch of these clerks shall also be a master in chancery and receive an annual salary of two thousand five hundred dollars, and his fees as master in chancerj-, and such portion of his fees as clerk as he is entitled to retain under the provisions of this act, and his neces- sary traveling expenses in attending court, to be computed as in case of the district judges. At the time of his ajipointment he shall have been admitted to practice in the Supreme Court of the United States, or in the highest judicial court of one of the States, or of the District of Columbia. On the nomination of the district judge for China the Secretary of State may appoint an interpreter for the district courts in China; and on the nomination of the district judge for Japan he may appoint an interpreter for the district courts in Japan. Each of these interpreters shall receive a salary at the rate of two thousand dollars a year, payable monthly, and bis necessary traveling expenses in attending court, to 212 JUDICIAL EXTRATKRRITOKIAL RIGHTS. be computed as in case of the district judges. Each shall also be the interpreter for the supreme court of the country for which he is ap- pointed. Before entering upon the duties of his office, each shall sub- scribe and take an oath before the district judge faithfully to observe the laws of the United States in force in (China or Japan as the case may be) and the rules of the court of which he is an ofHcer, and truly to interpret between the court and the witness in all causes, ctvil or criminal, in which he may be employed, which oath shall be filed in the archives of the court. A willful failure to so interpret truly shall nuke the offender guilty of perjury, for which he inay be tried and convicted by the proper consular court, although he be not a citizen of the United States. The said district courts may appoint temporary officers when neces- sary to the proper conduct of their business, and fix a reasonable com- pensation for their services, which shall be paid by the clerk out of any funds in his hanter] trying the cause may require the original bond of the marshal in those countries to be produced ; and it shall be the duty of the Secretary of the Treas- ury to forward the original bond to the court [or consul or minister] re- quiring the same. Sec. 4116. All rules, orders, writs, and processes of every kind which are intended to operate or be enforced against any of the marshals, in any of the countries named in this title, shall be directed to and exe- cuted by such persons as may be appointed for that purpose by the [minister or] consul issuing the same. I Sec. 4117. In order to organize and carry into eftect the system of jurisprudence demanded by such treaties, respectively, the ministers, with the advice of the several consuls in each of the countries, respect- ively, or of so many of them as can be conveniently assembled, shall prescribe the forms of all processes to be issued by any of the consuls ; 222 JUDICIAL EXTEATEERITORIAI. RIGHTS. tlie mode of executing and the time of retnrnitig the same ; the manner in which trials shall be conrtncted, and how the records thereof shall be kept; the form of oaths for Christian witnesses, and the mode of exam- ining all other witnesses ; the costs to be allowed to the prevailing party, and the fees to be paid for judicial services; the manner in which all officers and agents to execute i)rocesB, and to carry this title 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 de- cision of a consul ; and shall make all such further decrees and regula- tions from to time, under the i)rovisions of this title, as the exigency may demand.] [Seo. 41L8. All such regulations, decrees, and orders shall be plainly drawn xip in writing, and submitted, as hereinbefore provided, for the advice of the consuls, or as many of them as can be consulted without prejudicial delay or inconvenience, and such consul shall signify his as- sent or dissent in writing, wi'h his name subscribed thereto. After taking such advice, and corsidering the same, the minister in each of those countries may, nevertheless, by causing the decree, order, or regu- lation to be published with his signature thereto, and the opinions of his advisers inscribed thereon, make it binding and obligatory, until annulled or modified by Congress; and it shall fake effect from the pub lication or any subsequent day thereto named in the act.] [Sec. 4119. All such regulations, orders, and decrees shall, as speedily as may be after publication, be transmitted by the ministers, with the opinions of their advisers, as drawn up by them severally, to the Secre- tary of State, to be laid before Congress for revision.] [Sec. 4120. it shall be the duty of the minister in each of those coun- tries to establish a tariff of fees for judicial services, which shall be paid by such iiarties, and to such persons, as the minister shall direct ; and the proceeds shall, as far as is necessary, be applied to defray the ex- penses incident to the execution of this title ; and regular accounts, both of receipts and exi)enditures, shall be kept by the minister and con- suls, and transmitted annually to the Secretary of State.] Sec. 4121. [The President, when provision is not otherwise made, is authorized to allow, in the adjustment of the accounts of each of the ministers or consuls, the actual expenses of the rent of suitable buildings, or parts of buildings to be used as prisons for American convicts in those countries, not to exceed in any case the rate of six hundred dollars a year ; andalso the wages of the keepers of the same, and for the care of offend- ers, not to exceed, in any case, the sum of eight hundred dollars jjerannuum, But 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 sai.ction of the President, may designate, and the entire expense of prison and prison keepers at the consulate of Bangkok, in Siam, shall not exceed the sum of one thousand dollars a year.] The minister of the United 8ta1en in China shall, under direction of the Secretary of State, as soon as possible after the passage of this act, purchase, or lease for a term of not less than ten years, mlh privilege of renewal for ten years more a suitable buildiyig or buildings for court-house, with convenient rooms for the iffices of the clerl; marshal, janitors, and other attendants of the court, and also a suitable, safe, and convenient room for a prison, which shall be used for the confinement of persons undergoing sentence after conviction, and of such accused persons as may be held awaiting trial, at each of the follnn-lng places in China, viz : Canton, Shanghai, and Tien-Tsin The minister of the United States in Japan shall under like directions purchase or lease for a similar period and upon the same conditions, suitable buildings JUDICIAL EXTEATEBRITORIA/. RIGHTS. 223 for such court-house and offices, and a suitable building for a prison at Yokohama; and the minister of the United States for the Ottoman Empire shall purchase or lease for a similar period and under like conditions sniiu- ble buildings for the same purposes tit Constantinople, and a building for a prison at Smyrna. The contracts in each case shall be submitted to the Sec- retary of State beforebeing concluded, and the necessary amount of money for these purposes is hereby appropriated out of any moneys in the Trea- sury not otherwise appropriated. Sec. 4122. The President is autborized to allow in tbe adjustment of the accounts of [the] consuls general or consuls within whose districts aprison is situated, the necessary wages of the keepers of the prison and the neces- sary expenses of the care of offenders not exceeding five thousand dollars a year in all at Shanghai, or two thousand five hundred dollars a year at Yo- kohama, or one thousand five hundred dollars a year at any other place [at Shanghai the actual expense of the rent of a suitable building to be used as a prison for American convicts in China not to exceed one thousand Ave hundred dollars a year ; and also the wages of tbe keepers of the same and for the care of offenders not to exceed live thousand dollars a year; and to allow in tbe adjustment of the accounts of tbe consuls at other ports in China the actual expense of the hire of con- stables and the care of offenders, not to exceed in all five thousand dol- lars a year]. [Sec. 4123. The President is hereby authorized to allow in the adjust- ' meut of the accounts of the consul atKanagawa, the actual expense of the rent of a suitalile building to, be used as a prison for American con- victs in Japan, not to exceed seven hundred and fifty dollars a year ; and also the wages of the keepers of tbe same; and for the care of offenders, not to exceed two thousand five iiundred dollars a year ; and to allow in the adjustment of the accounts of the consuls at other ports in Japan the actual expense of the hire of constables and the care of offenders, not to exceed in all two thousand five hundred dollars a year.] [Sbo. 4124. The Secretary of State through the minister resident at Japan, is authorized to rent, furnish, and keep suitable buildings, with grounds appurtenant in Yeddo, or such other place as he may designate, for a court-house and jail, at an annual cost not exceeding five thousand dollars: Provided, That the period for which the buildings shall be rented shall be for_two years, with renewals for two years, as the Secre- tary of State may "determine.] Sec. 4125. The provisions of this title, so far as the same relate to crimes and offenses committed by citizens of the United States, shall ex- tend to Turkey, under the treaty with the Sublime Porte of May seventh, eighteen hundred and thirty, and shall be executed in the Ottoman do- minions in conformity with the provisions of the treaty, and of this title, by |the minister and] the consuls appointed to reside therein, who are hereby ex-ofBcio vested with thepowers herein conferred upon [tbe min- isters and consuls] courts 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. Sec. 4126. The provisions of this title shall extend to Persia, in re- spect to all suits and disputes which may arise between citizens of the United States thereiu; and the [minister and] consuls or agents who may be appointed to reside in Persia are hereby Invested, in relation to such suits and disputes, with such powers as are by this title conferred upon the [ministers and consuls] courts in China. All suits and disputes 224 JUDICIAL EXTRATEREITORtAL EIGHTS. arising in Persia between Persian subjects and citizens of the United States shall be carried before the Persian tribunal to which such mat- ters are usually referred, at the place where a consul or agent of the United States may reside, and shall be discussed and decided accord- ing to equity, in the presence of an employ^ of the consul or agent of the United States; and it shall be the duty of the consular otticer to attend the trial in person, and see that justice is administered. All suits and disputes o<;curring in Persia between the citizens of the United States and the subjects of other foreign powers shall be tried and ad- judicated by the intermediation of their respective ministers or con- suls, in accordance with such regulations as shall be mutually agree upon by the minister of the United States for the time being, and the ministers of such foreign powers, respectively, which regulations shall from time to time be submitted to the Secretary of State. Sec. 4127. The provisions of this title, so far as the same are in con- fiirmity with the stipulations in the existing treaties between the United States and Tripoli, Tunis, Morocco^ and Muscat, respectively, shall ex- tend to those countries, and shall be executed in conformity with the provisions of the treaties, and of the provisions of this title, by the con- suls appointed by the United States to reside therein, who are hereby ex-ofiicio invested with the powers herein delegated to the ministers and consuls of the United States appointi d to reside in the countries named in section forty hundred and eighty-three, so far as the same can be ex- ercised under the provisions of treaties between the United States and the several countries mentioned in this section, and in accordance with the usages of the countries in their intercourse with the Franks or other foreign Christian nations. [Seo. 4128. If at any time there be no minister in either of the coun- tries hereinbefore mentioned, the judicial duties which are imposed by this title upon the minister shall devolve upon the Secretary of State, who is authorized and required to discharge the same.] Sec. 4129. The provisions of this title relating to tiie jurisdiction of consular and diplomatic officers over civil and criminal cases in the countries therein named, shall extend to any country of like character witlj which the United States may hereafter enter into treaty relations. Seo. 4130. The word "minister," when used in this title, shall be un- derstood to mean the person invested with, and exercising, the princi- pal diplomatic functions. The word "consul" shall be understood 1?o mean any person invested by the United States with, and exercising, the functions of consul general, oice-consul-general, deputy consul-general, consul, or vice-consul, deputy consul, commercial agent, or vice commercial agent. Seo. 9. The following provisions relating to limitations of actions shall be in force as to all actions in the courts of the United States in any and all the said places out of the territory or domain of the United States : No action for the recovery of real property or for the recovery of the possession thereof shall be maintained unless it appear that the plain- tiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action, unless the person entitled to commence such action be at the time the title to the property shall first descend or accrue either within the age of twenty-one years, or insane, or imprisoned on a crim- inal charge, or in execution upon conviction of a criminal offense for a term less than life. In case of either such disability, such action may JUDICIAL EXTRATERRITORIAL RIGHTS. 225 after th"rpCTio?^'''° **■'" ^^'''"^ ''^^^^ "'"* disability has ceased, but not The periods prescribed for the commencement of actions other than toi the recovery of real estate are as follows : Ou a judgment of a court of the United States, including the courts estiiblis?jed hereby, or of any State or Territory, or on a sealed instru- ment within ten years after the cause of action accrues. Un all other actions or contracts and on all actions for torts, except as hereinafter provided, within six years after the cause of action occurs. Un actions against an officer of any of the said courts, in any of the said places, for alleged liability by reason of the doing of any act in his ofQcial capacity or the omission of an oflflcial duty ; actions' for the re- covery of fines and penalties ; actions for libel, slander, or false impris- onment, seduction, or breach of promise of marriage, within one year after the cause of action accrues. But if the person entitled to bring any of the said actions other than for the recovery of real estate be at the- time the cause of action accrues within the age of twenty-one years, or insane, or imprisoned ou a crim- inal charge, or in execution under the sentence of a criminal court for a term less than his natural life, the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than tive years by any such disability, nor can it be extended in any case longer than one year after the disability ceases. In construing these provisions and all the provisions of this act, the courts of the United States hereby authorized shall be governed by the decisions and rulings of the Supreme Court of the United States when there is found to be a conflict of opinion between that court and any other courts, but this shall not be construed as preventing any sucJi court from enforcing any universally recognized commercial custom and usage at the port or place where such court is established, even though the same may differ from a commercial usage prevailing in the United States. Sec. 10. Whenever it shall be made to appear to any court of the United States under this act that a similar court of any other power witMn the limits of the country within which the court is held denies to citizens of the United States the right to sue therein the citizens or subjects of such power, it shall be the duty of the court to suspend ac- tion in all suits pending therein in favor of the citizens or subjects of such power against citizens of the United States until the disability of citizens of the United States is removed. With this exception said courts of the United States are open to citizens and subjects of all na- tions to sue and prosecute to judgment suits against citizens of the United States residing within the judicial district of the court in which the suit is brought, subject to such rules and regulations regarding the conduct of such suits and security for costs as may be made by authority of law. Sec. 11. No person shall be arrested or imprisoned on any civil pro- cess issuing out of any court provided for or referred to in this act, or on any execution issuing out of such court in any suit or proceeding in- stituted for the recovery of any money due upon any judgment or de- cree founded on contract or due on any contract express or implied, or for the recovery of any damages for the non-performance of any con- tract. The provisions of section 7, relative to property which is exempted from being taken on execution in China and Japan, are extended to all the said places out of the territory and dominion of the United States. S. Mis. 89 15 226 JUDICIAL EXTEATEERITOEIAL RIGHTS. Sec. 12. Any consular officer of the United States, under directions of the Secretary of State, may assist in establishing and maintaining municipal governments in settlements occupied by Americans, Europ- eans, and other foreigners in any such place out of the territory and dominion of the United States. Citizens of the United States residing in such municipalities, either already organized or hereafter to be, are and shall continue to be subject to such regulations as fully as if the same were imposed by due authority of law within the domains of the United States. The consular courts of the United States shall take jurisdiction of and enforce the regulations issued by such municipal bodies, of which a consular officer of the United States is a member, and render judgment for fines and penalties imposed by the same, and cause such judgments to be enforced, and make such disposition of such fines and penalties when collected as may be provided in the municipal regulations. Sec. 13. Whenever, by custom, usage, capitulation, treaty, or other- wise, a consular officer of the United States has the right to sit in or be present at a sitting of a mixed court which takes jurisdiction of the rights of citizens of the United States, such officers are hereby em- powered to be present at such sittings, and to do or perform such official acts with respect thereto as may be necessary or proper under such custom, usage, cai)itulation, treaty, or otherwise, under such regulations as the Secretary of State may from time to time prescribe. Sec. 14. Whenever the evidence of a citizen of the United States resident or being within any of the consular districts of the United States referred to in this act shall be desired to be used before the con- sular or other court of some other power within the same district, the consular officer of the United States may, on request of the proper court, issue a writ of subpoena, aijd, if desired, a writ of subpoena duces tecum, requiring him to appear and testify before the said consular or other court; and on the failure of the witness so to appear, the consular oiH- cer may cause the offender to be arrested and may punish him for con- tempt as fully as he might do if the witness had been summoned to appear before the consular court of the United States and had failed to do so. The provisions of this section shall not be applied in favor of consular courts of other powers which deny similar favors to the consular and other courts of the United States. Sec. 15. Depositions of citizens of the United States, or of other per- sons submitting voluntarily to the jurisdiction, to be used in any civil cause pending in any court hereby established, may be taken before such court, or the clerk thereof, or before any judge or consular officer or the clerk of any court in the country in which the cause is pending. The proceedings in taking and returning depositions shall be conducted according to the provisions of the Revised Statutes, so far as applicable thereto, and the said code to be prepared by the Secretnry of State and the Attorney-General, and, in China and Japan, the rules which may be prescribed therefor by the respective supreme courts in those countries. Sec. 16. The following provisions relating to fraudulent conveyances, and to assignments, and to chattel mortgages, shall be in force' as to citizens of the United States in all the said places out of the territory and dominion of the United States, and in all the courts of the United States therein : AH deeds, conveyances, transfers, or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the JUDICIAL EXTEATEEEITOKIAL EIGHTS. 227 person or persons making the same, shall be void as against creditors existing or subsequent. • Every agreement that by its terms is not to be performed within one year from the making thereof, and every special promise to answer for the debt, default, or miscarriage of another, shall be void unless such agreement, or some note or memorandum thereof expressing the consider- ation, be in writing and subscribed by the party to be charged thereby. Every contract for the sale of any goods, chattels, or things in action for the price of fifty dollars or more shall be void unless a note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby, or unless the buyer shall accept auii receive part of said goods, or the evidences, or some of them, of such things in action, or unless the buyer shall at the time pay some part of the purchase-money. Every assignment of goods and chattels by way of mortgage or se- curity, or upon any condition whatever, shall be presumed to be fraud- ulent and void, as against the creditors of the person making such assignment, or , subsequent purchasers in good faith, unless the same be accompanied by immediate delivery and be followed by an actual and continued change of possession, or unless the mortgage, or a true copy thereof, be filed with the clerk of the consular court of the district in which the property is situated ; and the clerks of said courts are hereby required to receive such papers when offered for filing, and to keep them where they can be seen and examined, and to keep a register wherein shall be noted all such mortgages or copies filed and the date of each filing. ' Every conveyance of every estate or interest in lands, or the rents and profits of land, made or created with intent to defraud prior or subse- quent purchasers for a valuable consideration, as against such pur- chasers, shall be void. Every contract for leasing real estate for a longer period than one year, or for the sale of any lands or interests in land, shall be void un- less the contract, or some note or memorandum thereof expressing the consideration, shall be in writing and be subscribed by the party by whom the lease or sale is to be made. Every instrument required by any of the provisions of this section to be subscribed by any party may be subscribed by the lawful agent of such party. Sec. 17. The following provisions in regard to marriages and divorces and the rights of married women shall be in force as to citizens of the United States in all the said places out of the territory and dominion of the United States: Marriages between parents and children, and grandparents and grand- children of every degree, ascending and descending, and between broth- ers and sisters of the half as well as the whole blood, are declared to be incestuous and void, whether the children and relatives are legitimate or illegitimate. Marriages solemnized before a consular officer according to the pro- visions of section 4082 of the Eevised Statutes maybe solemnized either by a minister of the gospel or by a consular ofi&cer. The said district courts of the United States shall have jurisdiction to pronounce sentences of nullity of marriages contracted within their respective judicial districts when it appears that the former husband or wife of one of the parties was living at the time of the marriage, and that the marriage with such former husband or wife was then in force ; and to decree a divorce and a dissolution of a marriage for the cause of 228 JUDICIAL EXTEATERRITOEIAL KIGHTS. adultery committed by either husband or wife ■within the judicial dis- trict of the court; and a separation from bed and board forever, or for a limited time, for the following causes happening in such judicial dis- Irict: 1st. Cruel and inhuman treatment of the wife by the husband; 2d. Abandonment of the wife by the husband, and his refusal or neglect to provide for her ; and the court may in any of said cases mate such decree for the suitable supi)ort and maintenance of the wife and chil- dren, or any part of them, by the husband, as may appear just and proper. The real and personal property of any married woman, a citizen of the United States, within any of the said places out of the territory and dominion of the United States, which she shall own at the time of a mar- riage in such place, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor liable for his debts, and shall continue her sole and separate property as if she were a single female. When a wife separated or divorced from her husband has a right to the custody of her minor children, and is deprived thereof by her hus- band, she shall be entitled, on application to the district court, to have a Vivit of habeas corpus for the production of the child or children before the court, aud on the return of the writ the court may make such order thereon respecting the custody of the child or children as may be just. Seo. 18. The following provisions respecting the probate of wills, set- tlement of estates of deceased persons, succession to property, guardians of minors, and other similar matters are to be in force, in all said places out of the territory and dominion of the United States, as to citizens of the United States and their properties and estates: All such citizens, including married women, not being idiots or per- sons of unsound mind, or infants, may devise real estate and bequeath property by will, made in writing, subscribed and published by the tes- tator as his last will and testament, in the presence of at least one per- son, who, in the testator's presence and at his request, affixes his name thereto as a subscribing witness. Power is hereby conferred u])on the Secretary of State and the Attor- ney-General to frame, as part of the code hereinafter provided for, full provisions respecting the mode of proof of wills, all necessary proceed- ings in the settlement and distribution of the estates, both of testates and intestates, and the care and custody of the estates of minors during proceedings in probate. The consular courts are hereby made courts of probate with respect to the property of citizens of the United States, dying in their respect- ive consular districts, with full power, in the manner which may be provided by such code, to cause probate of wills, to issue letters testa- mentary, or letters of administration, to cause the estates ot deceased persons to be settled, and alter payment of just debts and expenses, to distribute the surplus, to appoint guardians of minor children, to fix the amount of security to be required of executors and guardians, to pass upon their accounts, and generally to do any and all acts usually done by a court of probate in such cases. Under such rules regulating appeals as may be made by the Supreme Court for China and Japan appeals may be taken from consular courts to the proper district court from decrees, approving or rejecting a will or on any interlocutory proceeding affecting private rights to the ex- tent of five hundred dollars, or from a decree of distribution when any one distributive share amounts to five hundred dollars. The district court may, when justice requires it, order proceedings in the consular court stayed, pending proceedings in the district court, and on render- JUDICIAL EXTRATERRITORIAL RIGHTS. 229 iug judgment shall remand the case to the consular court with such or- der as shall be necessary to carry into effect the decree or judgment of the appellate court. In case it becomes necessary to sell real estate or an interest therein in order to pay the just debts, or settle the estate of a deceased person, the probate court may order the sale, taking such steps with reference thereto as may be prescribed in such code. The distribution of such surplus estate shall be made as follows: One- third part thereof to the widow and all the residue by equal portions among the children, and such persons as shall legally represent such children, if any of them have died before the deceased. If there be no children, nor any legal representatives of them, one moiety of the whole surplus shall be allotted to the widow and the other moiety to the next of kin in equal parts. If the deceased leave a widow and no descendant, parent, brother or sister, the whole surplus shall be allotted to the widow, and if he leave no widow the whole surplus shall be distributed among the children in equal parts, and the representatives of any child that may have died before the deceased shall take the share of such child. Sec, 19. Eeal estate owned by citizens of the United States in such places out of the territory and dominion of the United States, who shall die without devising the same shall descend in manner following: 1, to his lineal descendants; 2, to his father; 3, to his mother; 4, to his col- lateral heirs. If the intestate shall have several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intes- tate, the inheritance shall descend to such i)ersons in equal parts, how- ever remote from the intestate the common degree of consanguinity may be, and if any of such persons shall have died before the intestate, leaving children, such children shall take his or her share in equal parts. But the consular court, as a court of probate, may, on petition of any party interested, order any or all such real estate to be sold for the purpose of distribution, and in that event the proceeds shall be distrib- uted in the same way and to the same persons to whom the I'cal estate would have fallen by descent. Sec. 20. The following provisions as to partnerships shall be in force in all the said places out of the territory and dominion of the United States, so far as concerns the citizens of the United States, and the consular and other said courts hereby provided for : A copartnership, of which a citizen of the United States is a general partner, may sue and be sued in said courts, and proceeding had in any such suit as if all the parties were members, except that cxecuons hall not issue against the separate property of a member who is not a citi- zen of the United States. Persons desiring to form a partnership in any consulur district for the transaction of business, with a limited liability, may do so under rules and regulations to be made by the Secretary of State. Power is hereby conferred upon the Secretary to make and publish and from time to time to change such rules and regulations, provided that none shall be made which do not provide for making public in the consular district where the business is to be transacted, a certificate to be signed bj' all the proposed partners, wherein shall be stated the names of all the partners, the amount of the cash capital contributed by each, the nature of the business, and the duration of the partnership. Any false statement in such certificate shall cause general liability of each and every partner for all the debts of the partnership. 230 JUDICIAL EXTRATERRITORIAL RIGHTS. Sec. 21. Every male citizen of tlie United States resident in China, Japan, the Ottoman dominions, or any other places covered by the provisions of this act, of the age of twenty one and upwards, being able to speak and read English, not having been convicted of any infa- mous crime, shall be qualified to serve ou a jury. All persons so quali- fied shall be liable, except persons in the diplomatic service, officers and employees of the courts and prisons, officers in the Army or Navy, on duty, clergymen and ministers in the actual discharge of professional duties, attorneys in actual practice, and persons disabled by mental or bodily infirmity. On or before the second Monday of January in each year a list shall be made out of persons residing in the district and qualified to serve as jurors. This list shall be conspicuously posted in the court room and consulate until the 31st of the same month. As soon thereafter as it can conveniently be done, the consul shall in open court revise and settle the list for the current year, and until the next list shall be settled. Whenever a jury is required the court shall summon at least fif- teen persons from the said list. Any one failing to appear when so summoned shall be liable to such fine, not exceeding fifty dollars, as the court may see fit to impose, to be collected in such manner as the court may direct. A jury shall consist of five jurors, and shall be required to give a unanimous verdict. No person interested in the result shall sit as juror iu a civil suit. In cases tried before a jury the rule of challenge shall be as follows : Challenges for cause shall be unlimited in civil and crim- inal cases, and all challenges for cause shall be tried by the court. In civil actions there shall be no peremptory challenges. In criminal prosecutions peremptory challenges shall be allowed. If the case is capital the defendant nine and the government three, to be exercised alternately, the defendant challenging three and the prosecution one. Iti all other felonies the defendant shall have five peremptory chal- lenges and the government two, to be made in the same manner. The parties to a civil action in which a jury is allowed may waive the same and submit the cause to trial by the court, but if one of such parties, after a waiver by the other, shall demand a jury, he may have a jury trial but must deposit with the clerk at the opening of court each day a sum sufficient to cover the per diem expenses of the j ury for that day. If a jury shall be had in the absence of such waiver, by either party, then the plaintiff in the action shall make such^er diem deposit for each day. The jury fees shall be taxed as costs in favor of the prevailing party in the action, and be recoverable as part of the judgment from the party against whom a final judgment shall be rendered. Jurors shall receive for their subsistence, while in attendance on court, three dollars each per day, and shall also be entitled to traveling ex- penses at the rate of eight cents per mile from their homes to the place of holding court^ and from such place to their homes, respectively. The clerk shall pay the jurors fees and mileage from a roll which shall be provided by him for each term of the district court, and be known as " the court pay-roll for the term of 18 — ," out of any funds in his hands from which court expenses are payable, as hereafter provided; each juror on receiving his per diem and mileage fees shall sign his proper signature to such roll, and the court pay-roll, thus signed and approved by the signature of the district judge, shall be the clerlv's sufficient voucher. Sec. 22. The following provisions as to punishments and penalties for crimes and offences committed by citizens of the United States, JUDICIAL EXTRATERRITOEIAL RIGHTS. 231 shall be in force in all of said places out of the territory and dominion of the United States. In all cases except as herein otherwise provided the punishment of crimes and offences shall be by fine or imprisonment or both. Every person convicted of murder shall be condemned and sentenced to suffer death. Every person convicted of manslaughter or of assault with intent to kill shall be sentenced to suffer imprisonment for not less than two or more than eight years. Every person convicted of rape, or of being accessory thereto be- fore the fact, shall be sentenced to suffer imprisonment for not less than ten or more than twenty years. Every person convicted of assault with intent to commit a rape shall be sentenced to suffer imprisonment for not less than one or more than five years. Every person convicted of burning or setting fire to, with intent to burn, any dwelling house or any other house, barn, or stable adjoining thereto and belonging to such dwelling, or any store house, warehouse, or shop, at the time used and occupied, or any church, meeting house, chapel, school-house, public library, public hall, theatre, or any ship or vessel in any harbor, shall be sentenced to imprisonment for not less ' than one or more than +en years. Every person convicted of burglary, or of being accessory to, before the fact, or of robbery, or of being accessory to, before the fact, shall be sentenced to suffer imprisonment for not less than three or more than seven years. Every person convicted of mayhem or bigamy, or as being accessory before the fact to either of said crimes, shall be sentenced to suffer im- prisonment for not less than two or more than seven years. Every person convicted of perjury or subornation of perjury shall be sentenced to suffer imprisonment for not less than two or more than ten years. Every person convicted of having within any of the consular judicial districts falsely forged and counterfeited any gold or silver coin which now is, or shall hereafter be, passing or in circulation within China or Japan, or of having falsely uttered, paid, or tendereil in payment any euch counterfeit or forged coin, knowing the same to be false and coun- terfeit ; or of liaving aided, abetted, or commanded the perpetration ot either of the said offences ; or of having falsely made, altered, forged, or counterfeited, or caused or procured to be falsely made, altered, forged, or counterfeited, or having willingly aided or assisted in falsely mak- ing, altering, forging, or counterfeiting any paper, writing, or printed paper to the prejudice of the right of any other person, body politic or corporate, or voluntary association, with intent to defraud such person, body politic or corporate, or voluntary association, or of having passed, uttered, or published, or attempted to pass, utter, or publish as true, any such falsely made, altered, forged, or counterfeited paper, writing, or printed paper, to the prejudice of the right of any other person, body politic or corporate, or voluntary association, knowing the same to be falsely made, altered, forged, or counterfeited, with intent to defraud such person, body politic or corporate, or voluntary association, shall be sentenced to suffer imprisonment and labor for not less than one or more than seven years. Every person convicted of larceny when the value of the property stolen shall be fifty dollars or more shall be sentenced to suffer impris- onment for not less than one or more than three years. 232 JUDICIAL EXTRATERRITORIAL RIGHTS Every person convicted of larceny where the value of the property stolen shall be less than fifty dollars shall be deemed gnilty of a mis- demeanor and shall be i)uuished by a fine of not more than fifty dollars, or by imprisonment for not more tban three months. Every person who shall be convicted of receiving or buying stolen goods or money, knowing the same to have been stolen, with intent to defraud the owners thereof, if the value of the property shall be fifty dollars or upwards, shall be deemed guilty of a misdemeanor and be punished by imiirisonment for not more than two years or less than six months. Every person convicted of obtaining by false pretenses any goods or chattels, money, bank-note, promissory note, or any other instrument in writing for the payment or delivery of money or other valuable thing, or of keeping a faro bank or gaming table, shall be sentenced to suffer imprisonment for not less than one or more than five years. Every person convicted of assault or assault and battery with intent to inflict a great bodily injury shall be sentenced to suffer imprisonment for not less than one or more than three years. Every person convicted of assault or of assault and battery shall be punished by a fine of not less than five or more than fifty dollars, or by imprisonment for not more than thirty days. Every person convicted by a consular court of any offence or misde- meanor, not enumerated in tliis act, and for which punishment is not provided herein, shall be punished by a fine not exceeding two hundred dollars or by imprisonment not longer than six months. In all cases of conviction by a consular courtfor a breach of any muni- cipal, city, or town ordinance the punishment shall be such as may be Ijrovided for the offence by such municipal, city, or town ordinances, but the punishment imposed in any such case shall not exceed a fine of fifty dollars or imprisonment for sixty days. When the sentence or punishment is in whole or in part by fine the court may in its discretion add to the sentence that the person so fined sha'l stand committed until the fine is paid, but such commitment shall in no case exceed thirty days. In all cases of conviction for crime, where the punishment provided by this section is by imprisonment for one year or more, the person sen- tenced may, in the discretion of the court, be condemned to labor at such work, if any, as may be provided for prisoners in the prison or place in which the sentence is to be carried out. Seo. '23. The following provisions relating fto clerks' fees, marshals' fees, and fees of interpreters shall apply to all of said places out of the territory, and dominion of the United States: The clerk shall tax and collect as a docket fee — 1. In all cases where the amount iu controversy is not more than $500 |5 00 2. Where the amouufc is over $500 and not more than $1,000 10 00 3. Where the amount is over |l,000 15 oo 4. Where no specific damages are sought the fee shall be graduat d according to the nature of the case, not less than five dollars or more than fifteen dollars, to be de- termined by the court. The clerks' fees shall be, for — 5. Issuing all writs, warrants, or otiier compulsory process $1 50 6. Docketing every suit commenced i go 7. Issuing executions 50 H. Issuing snmmons, subpoenas, and notices 25 9. All records and transcripts in appeals or for other purposes, for each hundred words 15 \ JUDICIAL EXTEATEEEITORIAL EIGHTS. 233 10. goal and certificate to auoli record or transcript $1 00 11. Drawing any notice, paper, order, or process, on the reqnest of any party to a suit or one interested tliereiu, and which is not otherwise provided for. 2 00 If such uotice, paper, order, or process exceed two hundred words, for eacli additional liundred words 1 00 12. Filing each paper upon the return of the marshal and all other papers filed in court ■ 10 The marshals' fees shall be, for — 13. Issuing any writ, warrant, or other compulsory process, for each person in- cluded in said writ or process $0 25 14. Serving summons 25 15. Each bail bond 1 00 16. Subpoenas for each witness summoned 25 17. Levying execution 1 00 18. Advertising property for sale 2 00 19. Releasing .property under execution by order of plaintiif 3 00 20. Selling property under execution, when the amount collected does not ex- ceed |1,000, five per cent. If over one and not exceeding five thousand dollars, three per cent. If over five thousand dollars, two per cent. 21. Traveling fees in serving all process, per mile 10 22. Serving any notice not herein provided for, exclusive of mileage 50 For extraordinary services performed by the marshal or any deputy or bailiff appointed by order of the court, a reasonable allowance may be made by the presiding judge, which shall be paid by the clerk out of the fund for court expenses. The interpreters' fees shall be for — 23. Each day's attendance on court $5 00 24. Making special translations 3 00 25. If more than two hundred words, for each additional hundred words 1 00 The witness fees shall be for — 26. Each day's attendance at court $150 27. Each mile traveled in going to nnd returniug from court 08 Appeal fees shall be for — 28. Docketing case in the district court on appeal |5 00 29. Entering judgment on appeal in the district court 5 00 30. Docketing case on appeal in the supreme court 10 00 31. Entering final judgment in the supreme court 5 00 32. Eecording opinion of the court in either the district or supreme court, for the first two hundred words 3 00 33. Each additional hundred words 1 00 34 Any intermediate or interlocutory order of the district or supreme court in appeal cases 100 35. Mandate or order of the appeal court to the court from which the appeal was taken 2 00 The fees prescribed for ^marshals and interpreters shall be retained by them, respectively, as official emoluments. Fee numbered 11 in this schedule shall be the personal emolument of the clerk. All other docket, court, and clerk fees shall be paid to the clerk, and by him safely kept as a part of the court expense fund, from which the said clerk is authorized to pay any bills or accounts, fees, or mileage which shall be presented to him, having indorsed thereon the approval in writing of a district judge. All fines and penalties imposed by the provisions of this act, except those imposed for a violation of municipal regulations, shall be paid to the clerk by whomsoever collected, for the use of the United States, and the proceeds of the fees, fines, and penalties thus collected by or paid to the clerk shall constitute the expense fund of the court, and the clerk shall on or before the first day of February of each year transmit to the Secretary of State a detailed account of all moneys received and all dis- S. Mis. 89 16 234 JUDICIAL EXTEATEERITOEIAL EIGHTS. bursements made by him, which account shall, before transmission, be submitted to the district judge, who, if he finds it correct, shall endorse his approval thereof on the account ; any surplus in the hands of the clerk shall be held by him subject to the order of the Secretary of State on behalf of the United States, and if the moneys thus received in any one year shall be found insufficient to meet the expenses of the court, the deficiency shall be paid from the contingent fund for diplomatic and consular expenses, on the order and by the direction of the Secretary of State; and in case there shall not be in the hands of the clerk sufflcient money for that purpose, he shall be authorized, on the approval of the district judge at any time during the year in which such deficiency shall occur, to draw a bill of exchange on the Secretary of State for the nec- essary amount to meet such deficiency, which shall be paid by the Sec- retary of State out of the said contingent fund for diplomatic and con- sular expenses. Sec. 24. The Secretary of State and the Attorney-General shall, as soon as possible after the passage of this act, prepare a code of prac- tice for the use of the said courts and of parties practicing therein. The said code shall provide for proceedings, which shall be simple and direct, so as to enable all persons to obtain speedy justice from said courts. It shall contain suitable forms for the principal business ; but no advan- tage shall be taken in said courts of defects in form. Free liberty of amendment shall be allowed, to the end that justice may not be denied for defects which do not go to the merits. The said code shall also contain suitable directions for proceedings in probate, insolvency, and for the formation of limited partnerships, and for all other matters hereinbefore provided for, including regulations which may be found necessary under the power conferred by section 4086 of the Revised Statutes, as hereby amended. The said code shall first be approved by the President, and shall then take effect in six months thereafter. It may be changed, amended, or modified from time to time by the Secretary of State and the Attorney-General, with the approval of the President. SErf._25. Whenever in this act a duty is imposed upon a consul, the duty, unless otherwise specially provided, shall be performed by the principal consular officer at the port or place where the consulate is situ- ated, and in his absence by the vice-consul-general or vice-consul; and in his absence by the deputy consul, if there shall be a deputy consul, or, if not, by such person as the principal diplomatic representative of the United States in the country may authorize in writing. lyTothing in this act contained shall be construed to affect in any way the powers conferred ui)on consuls in other countries than those referred to in this act by sections 1709, 1710, and 1711 of the Revised Statutes, or the powers conferred upon any and all consular officers by sections 4079, 4080, and 4081 of the Revised Statutes. Sec. 26. As to directions to the Secretary of State and the Attorney- General to prepare a code, and the authority conferred upon the Presi- dent to approve the same, contained in section 24, and as to the provisions for the purchase or leasing of buildings, contained in section 4121 of the Revised Statutes as hereby amended, this act shall take effect im- mediately. As to all other provisions it shall take effect in six months from the approval of such code by the President. CONSERVATION f^^ ^^ «? ,!•)?' lC,^>-