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in China matters not criminal were divided into three classes, each to be settled by a different court.
(1) The American authorities had jurisdiction in regard to rights, whether of property or person, between citizens of the United States in China.
(2) All controversies in China between citizens of the United States and any government other than the Chinese were to be regulated by the treaties between the two governments, without interference on the part of China.
(3) Controversies between citizens of the United States and subjects of China were to be examined and decided by the public officers of the two nations acting in conjunction.
On the 11th August, 1848, Congress passed an act "to give effect to the treaties with China and Turkey, giving certain judicial powers to ministers and consuls of the United States in those countries."
It was, of course, competent and proper for Congress to pass constitutional laws to execute its treaties, but it could not by any legislation change them, and any act of Congress which attempted this would be void to that extent. Congress could not give a consul in Turkey the same powers that one in China might have without the consent evidenced by treaty of the Turkish Government.
The first section of the act of August 11, 1848, refers to the Chinese treaty above and gives the commissioner and consuls of the United States in China, in addition to the other "powers and duties imposed upon them by the provisions of said treaty, judicial authority herein described."
The second section refers to criminal proceedings against citizens of the United States in the dominion of China, including Macao.
The third relates to civil proceedings, and the fourth is as follows, viz:
That such jurisdiction in criminal and civil matters shall in all cases be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute said treaty, extended over all citizens of the United States in China (and over all others to the extent that the terms of the treaty justify or require), so far as such laws are suitable to carry said treaty into effect; 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 shall be extended in like manner over such citizens and others in China; and if defects still remain to be supplied, and neither the common law nor the statutes of the United States furnish appropriate and suitable remedies, the commissioner shall, by decree and regulation, which shall have the force of law, supply such defects and deficiency.
The subsequent sections, down to and including section 21, provide for the machinery of courts and trials.
This is the twenty-second section:
That the provisions of this act, so far as the same relate to crimes committed by citizens of the United States, shall extend to Turkey, under the treaty with the Sublime Porte of May seventh, eighteen hundred and thirty, and shall be executed in the dominion of the Sublime Porte, in conformity with the provisions of said treaty, by the minister of the United States and the consuls appointed by the United States to reside therein, who are hereby ex officio vested with the power herein contained for the purposes above expressed, so far as regards the punishment of crimes.
So that it will be seen that even under this law the consuls in China and in Turkey do not stand on the same footing. In China they were allowed to try both civil and criminal cases; in Turkey criminal only. They were vested with vast powers in China
(1) To know the statute law of the United States and to judge of its applicability to the demands of justice in China.
(2) To understand the common law and administer it where the United States statutes were not sufficient.
(3) Where neither of these would do, then actually to make laws and execute them.
They were invested by this act, conceding it to be constitutional, with legislative, judicial, and executive powers to make, administer, and put into operation laws to affect the property, the liberty, and the lives of American citizens.
The accompanying letters from the Secretary of State, written in response to a request from the subcommittee to whom this case was referred, are submitted as part of this report.
From these it appears that Mr. De Leon, during the eight years of his consulate, only reported one civil case as having been tried by him. This was in July, 1857, and the Attorney-General then held that he could not try civil cases. (See opinion of Attorney-General, vol. 9, p. 256.)
It also appears that Mr. De Leon never at any time while in office made any application for the $1,000 a year now demanded.
This, then, is the situation:
The Department of State has not considered that the consuls in Turkey were entitled to the $1,000 a year for performing judicial functions, and has never in its estimates of appropriation recommended an appropriation for the purpose.
Congress has taken the same view, for no appropriation is made or has been made in annual bills to pay the consuls in Turkey the said sum of $1,000 a year.
Mr. De Leon himself did not think he was entitled to it, for he did not ask it.
Your committee does not think that, under the law and treaties, Mr. De Leon should be paid what he now claims, and ask to be discharged from the further consideration of his memorial.
August 22, 1888.
[Senate Report No. 2087.]
Mr. Dolph, from the Committee on Foreign Relations, submitted the following report:
The Committee on Foreign Relations, to whom was referred the bill (S. 1686) for the relief of George S. Fisher, having had the same under consideration, report:
A bill for Mr. Fisher's relief (S. 147) was introduced in the Senate at the first session of the Forty-ninth Congress, considered by the Committee on Foreign Relations, and reported adversely. The committee adopt said report, which is as follows:
[See Senate Report 105, Forty-ninth Congress, first session, p. 779.]
FIFTY-FIRST CONGRESS, FIRST SESSION.
January 22, 1890.
[Senate Report No. 151.]
Mr. Payne, from the Committee on Foreign Relations, submitted the following report:
[See Senate Report 1363, Fiftieth Congress, first session, p. 787.]
Mr. Payne, from the the following report:
[See p. 802.]
April 30, 1890.
[Senate Report No. 811.]
Committee on Foreign Relations, submitted
The committee find that Alexander Campbell, of West Virginia, Richard F. Miller, of Lynchburg, Va., Francis B. Wheeler, of New York City, and Thomas B. Merry, of Portland, Oregon, were appointed "Assistant Commissioners to the Melbourne Centennial International Exposition," which was held from August 1, 1888, to January 1, 1889, and that they attended such exposition and ably and faithfully discharged the duties that devolved upon them to the satisfaction of the chief commissioner and the Department of State; that the necessary expenses incident to such services largely exceeded the estimate of the Secretary of State; that there remains of the appropriation unexpended and not as yet covered into the Treasury $10,570.27, from which it is but reasonable and just that the several amounts specified in the bill should be paid.
The committee therefore recommend the passage of the bill with an amendment providing that said sums shall be in addition to the former allowance.
FIFTY-SECOND CONGRESS, FIRST SESSION.
[See pp. 799, 805, 807.]
June 15, 1892.
[Senate Report No. 810.]
Mr. Davis, from the Committee on Foreign Relations, submitted the following report:
The bill under consideration is for the relief of Mary A. Swift, widow of the late Hon. John F. Swift, envoy extraordinary and minister plenipotentiary of the United States to Japan, who died in that country during the second year of his incumbency of that office. The bill appropriates $12,000 to the beneficiary, being the amount of one year's salary.
There have been many precedents in our diplomatic history where action has been taken by Congress corresponding to that provided for in this bill. Those most readily occurring to the committee include the widows of General Hurlbut and Seth Ledyard Phelps, ministers to Peru in different years, General Kilpatrick, minister to Chile, and Rev. Henry Highland Garnett, minister to Liberia, to each of whom payments were made of a full year's salary, together with many other instances in which smaller payments were authorized to correspond with circumstances of lesser exigency. But the committee has not been able to find any case in which the conditions call for more liberal treatment than that under consideration.
At the time of the appointment of Mr. Swift, Japan, under the guidance of enlightened rulers, was groping through the darkness of centuries of eastern absolutism toward the light and blessings of representative government. This fact and the fact that this wonderful people looked to ours for inspiration and example led to the selection as minister of Mr. Swift, of California, not merely as a gentleman of
high and peculiar qualifications for the mission, but as a resident of the American State most closely allied to that country in nearness and commercial relations.
It will be remembered that, while a more liberal policy has recently obtained, the sections of their cities within which foreigners were perImitted to reside were limited to small areas called concessions." The house of the American legation was held by lease in the "concession" at Tokio, an unhealthy locality, where malaria had developed typhoid fever, causing death at the legation. When Mr. Swift arrived, this house was uninhabitable from defective drainage and other sanitary imperfections, necessitating a large expenditure to make it fit for occupancy. After Mr. Swift had occupied it only three months the property was sold, a renewal of the lease was denied, and the new owners demanded and were allowed immediate possession. It thus became necessary to seek new quarters, and a site was chosen near the legations of the other great powers, and Mr. Swift contracted with a wealthy Japanese for the building of the new legation. After the building was about two-thirds completed the Japanese Government bought the entire place, without consulting the American minister, and made a tender of it to the United States Government, with the condition that the United States would purchase the house at a cost of $30,000. The work on the house was discontinued, the foreign office of Japan claiming that it was the business of the contractor to finish it, while the contractor claimed that as the property had been bought by the Japanese Government it was their business to complete it. Having been turned out of the old legation, and not being able to live in an unfinished house, it became necessary to finish the house or that Mr. Swift should resign his position as minister to Japan, for the reason that it was necessary to prevent a rupture with the foreign office of the country to which he was accredited.
To complete and furnish the house and office fo the legation, Mr. Swift was obliged to spend several thousand dollars of his private fortune, which, in consideration of the peculiar complications involved, he expected would be reimbursed to him by the foreign office or his own Government. His sudden death prevented these adjustments and subjected his estate and his widow to almost the total loss of these expenditures.
The committee considers it equitable and just to take into account these facts, which have been furnished for its information by official and other authority, as well as the peculiar laws and customs of the country to which Minister Swift was accredited, and the circumstances which rendered it necessary to avoid complications with the Japanese Government while seeking to extend the friendly and commercial relations he was sent there to promote, and it therefore reports the bill for favorable consideration and recommends its passage.
FIFTY-SECOND CONGRESS, SECOND SESSION.
[See p. 799.]
January 31, 1893.
[Senate Report No. 1236.]
Mr. Frye, from the Committee on Foreign Relations, submitted the following report:
The Committee on Foreign Relations, to whom was referred the bill (S. 3429) for the relief of Charles T. Russell, late consul of the United
States at Liverpool, report the same back to the Senate with a favorable recommendation.
The committee has given careful consideration to all the facts and evidence in connection with this bill, and beg leave to submit the following report, made to the House of Representatives from the Committee on Claims, as containing a complete statement of the case and expressing the views of your committee thereon:
[House Report No. 663, Fifty-second Congress, first session.]
The Committee on Claims, to whom was referred the bill (H. R. 3716) for the relief of Charles T. Russell, late United States consul at Liverpool, having considered the same, respectfully report:
From the evidence furnished the committee by the Department of State it appears that the said Charles T. Russell, while consul at Liverpool, from 1885 to 1889, inclusive, and while in the discharge of the duties of that office, expended for the clerical force necessarily employed by him in the shipment and discharge of American seamen at the port of Liverpool the sum of $3,100. Congress had, prior to the year 1886, provided a fund which the State Department had drawn upon to the amount of about $2,100 annually, to defray the expenses incurred at the consulate in the shipment and discharge of American seamen, but which it had omitted to provide subsequent to the year 1885.
Mr. Russell was obliged to disburse from his own funds the above-named sum to meet the expenses of this service, as appears by the vouchers hereto annexed. The consul preceding Mr. Russell at Liverpool called the attention of the State Department to the omission by Congress to provide the funds to meet these expenses, and urged the necessity of continuing said appropriation to his successor. The State Department, recognizing the justice of Mr. Russell's claim, advised him to apply to Congress for reimbursement, as that Department had no authority to use any of its funds for the payment of these expenditures.
Your committee find that the amount named in the accompanying bill was actually and necessarily expended by Mr. Russell, and was less than the usual amount expended by his predecessors for such service; that no part thereof has been repaid to him, and that in justice and equity he is entitled to have the same refunded to him by the Government, and recommend the passage of the accompanying bill. The annexed correspondence is made a part of this report:
UNITED STATES CONSULATE,
SIR: I have to invite the attention of the Department to the omission of Congress to appropriate specifically, as heretofore, for the expenses attending the shipment and discharge of seamen at this and other consulates.
While personally I have no interest in the Department's action on account of my retirement from consular duties, nevertheless the appropriations for the next fiscal year will be available, and the urgent needs of the consulate warrant me in requesting, in behalf of my successor, an allowance from the item of $6,000, appropriated by Congress, the expenditure of which is placed at the discretion of the President, for the several consulates and commercial agencies in the transaction of their business.
The sum, from my experience and observation, having in view the proportionate amount of work attending the shipping office at this and other seaport consulates, which I think should be awarded this consulate is $2,000.
In support of the claim for the above-named sum I beg to invite the attention of the Department to my dispatch No. 233, dated June 19, 1883, in which will be found more in detail the facts touching the requirements existing now as then, which need not be repeated in this dispatch.
I shall therefore venture to suggest that the Department at an early day authorize the expenditure of the sum named to defray the expenses of the shipment and discharge of seamen at this consulate for the fiscal year ending June 30, 1886. I have the honor to be, respectfully, your obedient servant,
STEPHEN B. PACKARD,
Hon. JAMES D. PORTER,
Assistant Secretary of State.