The question presented to the Court is, does the Consular Regulation referred to furnish the rule of law for this jurisdiction, notwithstanding the provisions of section 1,044 with which it condicts?

The question is not one of easy solution. It presents many difficulties by reason of the status of the Court as an extraterritorial Court, and the necessity thus arising for differentiating this Court from every other United States Court.

The jurisdiction of all our Federal Courts at home is clearly defined and the body of law which those Courts administer can be usually ascertained with little difficulty. This is not equally true of the extraterritorial Courts created by the United States, though the necessity for their existence and the authority under which they have been created has never been questioned.

The difficulties arise from the admitted fact that the powers of these tribunals have never been clearly defined.

Sections 4,083 to 4,130, inclusive, of the Revised Statutes of the United States, are a codification of the laws enacted by Congress to define the judicial authority conferred upon Ministers and Consuls in conformity with the provisions of treaties of the United States with China and other countries within which extraterritorial jurisdiction was to be exercised.

Section 4,086 specifies the body of law which shall be administered by such Courts.

The provisions of this section may be briefly summarized as follows:First. The laws of the United States are extended over our citizens in China "so far as they are suitable" to give effect to the treaties with China.

Second. 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 laws of equity and admiralty, "are extended in like manner over our citizens in China.”

Third. If neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, "furnish appropriate and sufficient remedies" the ministers, respectively, shall supply such defects. and deficiencies by "decrees and regulations which shall have the force of law."

Section 4,117 relates to rules of procedure of the Consular Courts and provides that they shall be made by the minister with the advice of the several consuls. It specifies various matters of procedure respecting

66

which the minister shall make rules and concludes with mandatory authority to make such further decrees and regulations, under the provisions of this title as the exigency may demand."

It should be observed that this latter provision relates not only to matters of procedure covered in section 4,117, but, as stated, to such further decrees and regulations as the exigency may demand, "under the provisions of this Title," viz: Title XLVII, which includes section 4,086, herein before referred to.

Section 4,118 provides for the publication of such regulations, decrees and orders and makes them binding and obligatory until annulled or modified by Congress.

Regulation 82, referred to, is one of the regulations thus adopted and it has not been annulled or modified by Congress.

On June 30, 1906, Congress created the United States Court for China. It should be first noted that the jurisdiction of the Consular Courts in China, defined by the several statutes above cited, had been exercised for many years prior to the passage of the act organizing this Court.

The Act provides that the Consular Courts are still to exercise a limited jurisdiction.

This fact, the appellate jurisdiction given to the United States Court for China, the requirement that the Judge and District Attorney shall be lawyers of good standing and experience, and other manifest reasons, indicate that the general purpose of Congress was to provide a higher and more efficient tribunal than had theretofore existed in China for the exercise of the judicial functions authorized by the treaties with China. The act is not long or elaborate in its provisions.

Section 4 relates to the body of law which shall guide the Court in the exercise of its jurisdiction.

First

The treaties must be complied with.

Second Its jurisdiction must be exercised in conformity with the laws of the United States in reference to the American Consular Courts in China, which were in force at the date of the passage of the Act. This covers sections 4,083 to 4,130, inclusive, of the Revised Statutes (such as are applicable to China), and the Regulations, Decrees and Orders which have been promulgated in pursuance thereof which have been given the force of law. Sections 4,086, 4,117 and 4,118.

One exception is made, and this is the only one, viz: that sections 4,106 and 4,107, relating to summons of associates, shall not apply to this Court.

The significance of this single exception must be recognized. It can hardly be construed otherwise than as an affirmative confirmation of all the other then existing laws and regulations. The familiar maxim expressio unius est exclusio alterius obtains.

Third― It is provided that when such laws, viz: "the laws now in force in reference to American Consular Courts in China," are deficient in certain named respects, resort may be had to the common law and the law as established by the decisions of the courts of the United States.

The deficiencies specified in this section differ in language and substance from those described in section 4,086 of the Revised Statutes, and must be construed in connection therewith and as additional thereto.

There is nothing in this section of the Act which touches directly the question presented in the case at bar.

Section 5 relates to the procedure of the Court and provides that it shall be" in accordance, so far as practicable, with the existing procedure prescribed for Consular Courts in China in accordance with the Revised Statutes of the United States," the Judge being given power to modify and supplement said rules.

It is obvious that the particular Revised Statutes to which reference is made are those sections of the Revised Statutes which we have already recited, contained in Title XLVII in pursuance of which the then existing procedure had been adopted. The words "in accordance with " (last used) are merely descriptive and not words of limitation.

In other words the procedure of the Court which this statute provides are the existing Consular Regulations. The statute does not state that only such regulations shall be binding as the Court may find to have been made in harmony with the Revised Statutes of the United States. It could have done so very easily by the use of appropriate words. As the statute stands it is not rationally open to any other construction than that announced. The phrase "prescribed for Consular Courts in China. in accordance with the Revised Statutes of the United States" is purely and simply descriptive.

All the existing regulations had been laid before Congress, as required by law, many years before this statute was passed, and it must be presumed, under well established doctrine, that Congress had full knowledge of these regulations. Clinton v. Englebrecht, 13 Wallace, 446.

In fact it appears to the Court that the provision referred to can not be considered as anything less than an affirmative recognition and confirmation of such of these regulations at least as relate to procedure.

Whether or not the Act must be considered as recognizing and confirming the whole body of these regulations existing at the date of the passage of this Act, the Court does not at this time undertake to say. It is proper to say, however, that Congress had this opportunity to annul or modify any of these regulations of which it did not avail itself. Whatever objections may have been theretofore made to these regulations, based on a denial of the constitutional authority of Congress to delegate its legislative powers, it seems clear to the Court that the present action. of Congress, in respect to such then existing regulations as relate to procedure of the Consular Courts, operates not only as a confirmation of such rules but practically as an enactment of such regulations, exactly the same as if they had been verbally recited in the Act itself. However much their origin may be assailed, the regulations adopted under section 4,117 are now clearly and unquestionably made binding and obligatory on this Court by direct and specific enactment.

If section 1,044 of the Revised Statutes had theretofore any application in the Consular Courts of China, it has no force as a rule of procedure in the United States Court for China, because Congress has provided otherwise in the Act creating the Court.

Rule 82 of the Consular Regulations, is made the law of this jurisdiction respecting limitation of criminal actions. The Court so holds. While this holding disposes of the plea-in-bar in this case, I deem it proper to state that there are other and additional grounds upon which the Court might be inclined to sustain the validity of such rule. The Court will consider them somewhat briefly.

We premise that a grave distinction must be recognized between the system of jurisprudence provided for in the Constitution for the United States, and that which Congress has provided to meet extraterritorial. emergencies created by treaties with foreign governments.

There is ample ground for contending that such legislation as Congress has passed upon this subject, was well within its constitutional

powers.

These several sections of the Revised Statutes had for their purpose: "to organize and carry into effect the system of jurisprudence demanded. by such treaties." Section 4,117, Revised Statutes.

It was obviously another and entirely different system of jurisprudence. from that already provided by Congress for operation within the geographical boundaries of the United States. The Constitution provides that all treaties made or to be made under the authority of the United States shall be a part of the supreme law of the land. - Article VI.

When a treaty duly made provides for the exercise of judicial powers by some officer of the United States within the borders of a foreign country, the necessity arises for organization of some system of jurisprudence to provide for the execution of the treaty in that respect. In the Ross case, the Court said:

By the Constitution a government is ordained and established for the "United States of America," and not for countries outside of their limits. (140 U. S. 453.)

In that case is was sought to have the judgment of a Consular Court set aside because the accused was not given a trial by jury under guarantees secured by the Constitution. Following the sentence already quoted, Justice Field said:

The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury, when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners aboad. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of investing the consul with judicial authority. While, therefore, in one aspect the American accused of crime committed in those countries is deprived of the guarantees of the Constitution against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive and sometimes accompanied with extreme cruelty and torture.

The power of Congress to create a system of jurisprudence for operation in foreign territory in fulfillment of treaty privilege, it has been asserted, may rest on the eighth section, Article I of the Constitution, which gives Congress the power to regulate commerce with foreign nations, and a subsequent clause of the same section which gives Congress power to enact laws to define and punish offenses against the law of nations and to carry into execution all powers vested by the Constitution in the Government of the United States or in any department or officer thereof. Hinckley's Am. Consular Jurisdiction, p. 68.

The President, by, and with the consent of the Senate, is empowered to make treaties and as treaties become a part of the supreme law of the