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all rights and privileges necessary to the performance of the consular office. Generally, a consul may claim for himself and his office not only such rights and privileges as have been conceded by treaty, but also such as have the sanction of custom and local laws, and have been enjoyed by his predecessors or by consuls of other nations, unless a formal notice has been given that they will not be extended to him." 28

§ 404. Violation of criminal laws.-If a foreign consul violates the criminal laws of the country in which he resides, he is liable to be punished to the same extent as other foreign residents.29 While a consul may claim exemption from service on juries and in the militia,30 yet American citizens holding foreign consulates in the United States are not, by the law of nations, exempt from jury duty or service in the militia.3

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If

The consular regulations of the United States provides that the privileges of a consul engaging in business in the country of his official residence "are, under international law, more restricted. especially if he is a subject or citizen of the foreign state. his exequatur has been granted without limitations, he may claim. the privileges and exemptions that are necessary to the performance of the duties of his office; but in all that concerns his personal status, or his status as a merchant, it is doubtful whether he can claim any rights or privileges not conceded to other subjects or citizens of the state. He should, however, claim the same privileges and immunities that are granted to other merchant consuls in the same country.

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§ 405. In eastern countries.-In countries non-Christian, the right of extraterritoriality exists to a large degree. This is due. to the fact that these nations are not admitted to a full community of international law.33 "In non-Christian countries the rights of extraterritoriality have been largely preserved, and

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have generally been confirmed by treaties to consular officers. To a great degree they enjoy the immunities of diplomatic representatives together with certain prerogatives of jurisdiction, the right of worship, and, to some extent, the right of asylum. These immunities extend to exemption from both the civil and criminal jurisdiction of the country to which they are sent, and protect their households and the effects covered by the consular residence. Their personal property is exempt from taxation, though it may be otherwise with real estate or movables not connected with the consulate. Generally, they are exempt from all personal impositions that arise from the character or quality of a subject or citizen of the country.'

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§ 406. United States court for China.-In 1906 a United States court for China was created, with "exclusive jurisdiction in all cases and judicial proceedings whereof jurisdiction may now be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China, except in so far as jurisdiction may be qualified by section 2 of the act creating the court.35

Consular Regulations of the United States (1896), sec. 75, p. 29. 334 Stats. at Large, pt. 1, p. 814. Section 2 of this act provides: "The consuls of the United States in the cities of China to which they are

respectively accredited shall have the same jurisdiction as they now possess in civil cases where the sum or value of the property involved in the controversy does not exceed five hundred dollars United States money and in criminal cases where the punishment for the offense charged cannot exceed by law one hundred dollars' fine or sixty days' imprisonment, or both, and shall have power to arrest, examine, and discharge accused persons or commit them to the said court. From all final judgments of the consular court either party shall have the right to appeal to the United States court

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for China: Provided, also, That ap peal may be taken to the United States court for China from any final judgment of the consular courts of the United States in Korea so long as the rights of extraterritoriality shall obtain in favor of the United States. The said United States court for China shall have and exercise supervisory control over the discharge by consuls and vice-consuls of the duties prescribed by the laws of the United States relating to the estates of decedents in China. Within sixty days after the death in China of any citizen of the United States, or any citizen of any territory belonging to the United States, the consul or vice-consul whose duty it becomes to take possession of the effects of such deceased person under the laws of the United States shall file with the

It is provided that the jurisdiction of this court, "both original and on appeal, in civil and criminal matters and also the jurisdiction of the consular courts in China, shall in all cases be exercised in conformity with said treaties and the laws of the United States now in force in reference to the American consular courts in China, and all judgments and decisions of said consular courts, and all decisions, judgments, and decrees of the United States court, shall be enforced in accordance with said treaties and laws. But in all such cases when such laws are deficient in the provisions necessary to give jurisdiction or to furnish suitable remedies, the common law and the law as established by the decisions of the courts of the United States shall be applied by said court in its decisions, and shall govern the same subject to the terms of any treaties between the United States and China.'' 36

§ 407. What law to prevail.-By treaties with China, the United States obtained extraterritorial jurisdiction in civil controversies between American citizens residing in China, as to any

clerk of said court a sworn inventory of such effects, and shall as additional effects come from time to time into his possession immediately file a supplemental inventory or inventories of the same. He shall also file with the clerk of said court within sixty days a schedule under oath of the debts of said decedent, so far as known, and a schedule or statement of all additional debts thereafter discovered. Such consul or vice-consul shall pay no claims against the estate without the written approval of the judge of said court, nor shall he make sale of any of the assets of said estate without first reporting the same to said judge and obtaining a written approval of said sale, and he shall likewise within ten days after any such sale report the fact of such sale to said court, and the amount derived therefrom. The said judge shall have power to require at any

time reports from consuls or viceconsuls in respect to all their acts and doings relating to the estate of any such deceased person. The said court shall have power to require where it may be necessary a special bond for the faithful performance of his duty to be given by any consul or vice-consul into whose possession the estate of any such deceased citizen shall have come in such amount and with such sureties as may be deemed necessary, and for failure to give such bond when required, or for failure to properly perform his duties in the premises, the court may appoint some other person to take charge of said estate, such person having first given bond as aforesaid. A record shall be kept by the clerk of said court of all proceedings in respect to any such estate under the provisions hereof." 36 34 Stats. at Large, pt. 1, p. 814, sec. 4.

crime committed there by them. At the time that the act creating the court for China was enacted, the jurisdiction of consular courts was defined by the Revised Statutes in the following terms: "Jurisdiction in both civil and criminal matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries.'' 37

§ 408. Object of this court.—In a recent case decided by the United States circuit court of appeals for the ninth circuit, it was stated that in creating this court, the object of the treaty and the intention of Congress, in so far as its criminal jurisdiction is concerned, was "to throw around American citizens residing or sojourning in China, and there charged with crime, the beneficient principles of the laws of the United States relating to the trial of persons charged with crimes the rules of evidence, the presumption of innocence, the degree of proof necessary to convict, the right of the accused to be confronted with witnesses against him, exemption from being compelled to criminate himself, etc. But while securing to them these privileges, the statute at the same time made them subject to punishment for acts made criminal by any law of the United States, or for acts recognized as crimes under the common law.

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§ 409. Common law in force.-In that case the court had occasion to consider the date at which the common law in existence should be considered as the common law binding the court, and reached the conclusion that Congress had reference to the common law in force in the several American colonies at the date of the separation from the mother country, including not only the

"Rev. Stats., sec. 4086.

33 Biddle v. United States, 156 Fed. 759.

ancient common law, the lex non scripta, but also the statutes which had before this date been passed for the purpose of amending or aiding the common law. The court adopted the language of Judge Cooley: "The colonies also had legislatures of their own, by which laws had been passed which were in force at the time of the separation, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day.

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§ 410. Obtaining money under false pretenses.-A person was convicted in this court of obtaining money under false pretenses, and it was claimed on appeal that this act was not an offense at common law, and was not made a crime by the laws of the United States. The court said that this particular kind of cheating was not criminal under the ancient common law, but was first so declared in 1757 by statute.40 Congress has made it a crime in the territory over which the United States exercises exclusive jurisdiction to obtain money under false pretenses.11 It is also provided: "That when any offense is committed in any place, jurisdiction over which has been retained by the United States or ceded to it by a State, or which has been purchased with the consent of a State for the erection of a fort, magazine, arsenal, dockyard, or other needful building or structure, the punishment for which offense is not provided for by any law of the United States, the person committing such offense shall, upon conviction in a

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Cooley's Constitutional Limitations, 25. It also quoted the language of Mr. Bishop: "The rule is familiar to the legal profession, that colonists to an uninhabited country carry with them the laws of their mother country, as far as applicable to their new situation and circumstances; and that, in their new home,

the laws thus taken with them,
whether in the mother country they
were written or unwritten, are re-
garded as unwritten, or
law." 1 Bishop's Criminal Law,
see. 155.

common

40 30 Geo. II, c. 24; 2 Bishop's Crim. Law, sec. 392; 19 Cyc. 387.

131 Stats. at Large, 1326, 1327.

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