circuit or district court of the United States for the district in which the offense was committed, be liable to and receive the same punishment as the laws of the State in which such place is situated now provide for the like offense when committed within the jurisdiction of such State, and the said courts are hereby vested with jurisdiction for such purposes; and no subsequent repeal of any such State law shall affect any such prosecution." 42 At the time that the act referred to was passed, most of the states of the Union made it a crime to obtain money or goods by false pretenses, and hence, in all places in such states over which the United States exercises exclusive jurisdiction, this act would, if there committed, be a crime against the United States. The court said that in view of these statutes its conclusion was that "obtaining money or goods under false pretenses is an offense against the laws of the United States, within the meaning of the statute conferring jurisdiction upon the United States Court for China, and that an American citizen guilty of the commission of such an act in China is subject to trial and punishment therefor by that court. ''43 But the court held that the false representation alleged as constituting the false pretense must be of some past or existing fact. A representation of an act to occur in the future is not sufficient. 42 30 Stats. at Large, 717. See, also, Rev. Stats., sec. 5391. For an application of this provision, see Sharon v. Hill, 24 Fed. 731; United States v. Wright, Fed. Cas. No. 16,774; United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. Rep. 746, 38 L. ed. 631. Biddle v. United States, supra. While this decision clearly states the jurisdiction of the court and defines the common law which prevails, the court held that the information upon which the defendant was convicted did not state facts sufficient to constitute the offense of obtaining money under false pretenses. On this point it said: "The information, so far as is necessary to be here set out, charges that the defendant on or about the 31st day of October, 1906, in Shanghai, China, unlawfully and knowingly did falsely pretend to Woo Ah Sung, Zung Yu Young, Ng Sih Yiek and Sz Yung, that the municipal authorities of the International Settlement of Shanghai, China, would allow and permit in the building known as Nos. 4 and 5 Mohawk Road, Shanghai, China, Chinese gambling games to be played during the Autumn Race Meeting of 1906, in Shanghai, China, which pretenses were false as the said C. A. Biddle then and there well knew, and by said false pretenses the said C. A. Biddle, with intent to defraud, unlawfully did obtain from the said Woo Ah Sung, Zung Yu Dong, Ng Sih Yiek and Sz Yung the sum of Tls. 3000.00 Shanghai Sycee as rent § 411. Suits against consuls.-Under the Constitution of the United States the supreme court possesses original jurisdiction It will be noticed that the alleged false pretenses relate wholly to some future action of the municipal authorities of the International Settlement of Shanghai, in permitting Chinese gambling to be played during the Autumn Race Meeting of 1906, in Shanghai. There is no averment that defendant made any false representation as to any existing fact, or past fact, and without such an averment the charge of obtaining money under false pretenses cannot be sustained. In order to constitute the crime of obtaining money under false pretenses, the alleged false representation must be of some past or existing fact. Says Mr. Bishop, section 401, volume 2, in his work on Criminal Law, third edition: "Both in the nature of things, and in actual adjudication, the doctrine is, that no representation of a future event, whether in the form of a promise or not, can be a pretense, within the statute; for the pretense must relate either to the past or the present. This statement is well sustained by decided cases. People v. Miller, 169 N. Y. 339, 88 Am. St. Rep. 546, 62 N. E. 418; Cook v. State, 71 Neb. 243, 98 N. W. 810. Our attention has not been called to any case which holds to the contrary. People v. Wasservogel, 77 Cal. 173, 19 Pac. 270, which is cited by the learned attorney for the United States, is in harmony with the rule as we have stated it. In that case the defendant obtained money upon a draft drawn by him, he falsely stating at the time that he had credit with the firm upon which it was drawn, for the amount of the draft, and that the draft would be honored. In that case, it will be perceived, there was the false representation of an existing fact, and the court, in its decision upholding the conviction in that case, said: "It is true that to come within the statute, a representation must be of some fact, past or present; but the statement of the defendant that he had credit with the firm named for the amount of the draft, and that the firm would honor the draft, when he knew that he had no credit with the firm, and that the draft would not be honored or paid, was sufficient." Passing from the information to a consideration of the evidence: It was wholly insufficient to justify the conviction of defendant. It appears that on May 29, 1906, the defendant in his own name, but in fact acting for the Hotel Metropole Company, Limited, entered into a contract with the firm composed of the Chinese named in the information, whereby the defendant, "let during the four days of the autumn race meeting of 1906, the whole of the second floor and verandah of the building Nos. 4 and 5 Mohawk Road, for the purpose of running Chinese tables for the sum of taels six thousand-Tls. 6,000-fifteen hundred taels of which to be paid on the signing of the contract by the said Yik Che as bargain money, the balance to be paid on or before the first day of November, 1906. This contract to be null and void should the municipal authorities prohibit the running of the said building as a Chinese grand stand in all cases affecting ambassadors and consuls.+4 But while jurisdiction thus exists, it is not exclusive, and Congress is not prohibited from conferring jurisdiction upon subordinate courts of the United States.45 At one time, under the statutes of the United States, state courts had no jurisdiction in suits against consuls.46 This was because the statutes made the jurisdiction exclusive. This subject is more fully discussed in a succeeding section. during said race meeting and the above mentioned fifteen hundred taels bargain money be returned to the said Yik Che." It is very clearly shown by the evidence that when the payments were made under this contract, the parties knew that gambling was not then permitted in Shanghai, and would not be during the approaching Autumn race meeting of 1906, unless the municipal authorities should in some manner remove the prohibition. There was also some evidence tending to show that the council had refused, before the making of the above lease, to give its consent to the suspension of the ordinance against gambling in Shanghai, and that this fact was known to the defendant and not communieated by him to the lessees; and that he and others were endeavoring to get the council to recede from its position against gambling, during the time the several payments were made under this lease; but there was no evidence that defendant ever made any expense or implied representation that the ordinance against gambling had been repealed or suspended; there was no false representation of any existing fact." Holding this view, the court reversed the judgment, with directions to discharge the defendant. Treaties-28 In another case appealed from the same court the appellate tribunal held that an unloaded pistol, when there is no attempt to use it otherwise than by pointing it in a threatening manner at another, is not a dangerous weapon. Price v. United States, U. S. Cir. Ct. App., 9th Circuit, November 5, 1907. "Const., art. III, sec. 2. 45 Gittings v. Crawford, Taney's Dec. (U. S.) 11, Fed. Cas. No. 5465; St. Luke's Hospital v. Barclay, 3 Blatchf. (U. S.) 259, Fed. Cas. No. 12,241; Graham V. Stucken, 4 Blatchf. (U. S.) 50, Fed. Cas. No. 5677; Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. Rep. 407, 28 L. ed. 419. 6 McKay v. Garcia, 6 Ben. (U. S.) 556, Fed. Cas. No. 8844; Sartori v. Hamilton, 13 N. J. L. 107; Mannhardt v. Soderstrom, 1 Binn. (Pa.) 138; Valareno v. Thompson, 7 N. Y. 576; Griffin v. Dominguez, 2 Duer. (N. Y.) 656; Commonwealth V. Kosloff, 5 Serg. & R. (Pa.) 545; Davis v. Packard, 7 Pet. (U. S.) 276, 8 L. ed. 684; Sagory v. Wisseman, 2 Ben. 240, Fed. Cas. No. 12,217; Durand v. Halbach, 1 Miles (Pa.), 46; Naylor v. Hoffman, 22 How. Pr. 510; Dupont v. Pichon, 4 Dall. 321, 1 L. ed. 851; Miller v. Van Loben Sels, 66 Cal. 341, 5 Pac. 512. § 412. Exemption under such statutes not waived by failure to plead. This exemption, when expressly conferred by statute, is not a personal privilege, and is not waived if the defendant fail to plead it, as he may take advantage of the exemption in the appellate court for the first time.47 "It is the privilege of the country or government which the consul represents. This is the light in which foreign ministers are considered by the law of nations, and our Constitution and law seem to put consuls on the same footing in this respect. If the privilege or exemption was merely personal, it can hardly be supposed that it would have been thought a matter sufficiently important to require a special provision in the Constitution and laws of the United States. Higher considerations of public policy doubtless led to the provision. It was deemed fit and proper that the courts of the government, with which rested the regulation of all foreign intercourse, should have cognizance of suits against the representatives of such foreign governments. But a consul may sue in a state court.49 48 § 413. Reclamation assessment.-The statute of California permits a reclamation district to commence a suit to determine the validity of an assessment levied for the reclamation of swamp lands. This action is not an action in personam, and while it is not strictly a proceeding in rem, it partakes of its nature. Its purpose is to test the legality of the assessment and to enable the owner to present his objections to its validity at a hearing in advance of an action upon the assessment. It is a process of law, and constitutes one of the means by which the lien upon the property in the district is established. A defendant who owns property in the district and who is a foreign consul cannot, in such a proceeding, plead his consular privilege in bar.50 § 414. Concurrent jurisdiction with state courts.-The courts of the United States originally had exclusive jurisdiction of all suits or proceedings against consuls, but while Congress has the Miller v. Van Loben Sels, 66 Cal. 341, 5 Pac. 512; Valareno v. Thompson, 7 N. Y. 576; Davis v. Packard, 7 Pet. 276, 8 L. ed. 684. 48 Davis v. Packard, 7 Pet. 276, 8 L. ed. 684. 49 Sagory v. Wissman, 2 Ben. (U. S.) 240, Fed. Cas. No. 12,217. 50 Reclamation District No. 551 v. Runyon, 117 Cal. 164, 49 Pac. 131. power to declare that such jurisdiction shall be exclusive, it may also declare the extent to which the state courts may exercise concurrent jurisdiction, as also at what stage of the proceedings the jurisdiction of the federal courts may attach in cases originally instituted in the state courts. In the section of the Revised Statutes as originally enacted the jurisdiction vested in the courts of the United States in all suits or proceedings against ambassadors, or other public ministers, or against consuls or vice-consuls, was made exclusive. But by the amendment of 1875 this particular subdivision was stricken out, and since that date no express declaration has been made in the statutes of the United States that the jurisdiction of the federal courts against a consul is exclusive of the state courts. By this amendment, "removing from the statutes the express provision that the jurisdiction of the federal courts in suits or proceedings against consuls should be exclusive of the courts of the several states," Songress must have intended to declare that such jurisdiction should no longer be exclusive, unless it is made exclusive either by the Constitution itself or by other existing legislation. There is, however, as above seen, no express declaration by Congress that such jurisdiction is exclusive, but it must be conceded that a consul who has been recognized by the President and admitted to the exercise of his official functions shall not, so long as he continues in the exercise of those functions, be deprived of the benefits of the provision in the Constitution extending the judicial power of the United States to all cases in which he is affected, and that unless there is some law by which he may invoke this judicial power for the purpose either of removing the cause into the courts of the United States before judgment, or to review the judgment of the state court, a state court can have no jurisdiction to entertain an action in which he is a defendant. Under this provision of the Constitution he is entitled to invoke the exercise of that power in any case to which he may be a party, and, if Congress has made any provision by which he can avail himself of this right, he is amply protected in the enjoyment of this provision of the Constitution. The Constitution does not declare that he shall be exempt from the jurisdiction of the state courts, but that the judicial power of the United States shall extend to all cases affecting him. It is for Congress to determine the mode and time at which he may invoke this jurisdiction, and if that body has provided a means |