Consular func tries not Chris tian. coexisting nationalities around them in the same country, and to that country's own supreme political or military power. 40. The consuls of Christian States, in the countions in countries not Christian, still retain unimpaired, and habitually exercise, their primitive functions of municipal magistrates for their countrymen; their commercial or international capacity in those countries being but a part of their general capacity as the delegated administrative and judicial agents of their nations. Origin of the 41. This condition of things came to be permanent law of nations. in the Levant, that is, Greek Europe and its dependencies, by reason of the tide of Arabic and Tartar conquest having overflowed so large a part of the Eastern empire, and established the Mohammedan religion there. But the result was different in Latin Europe, because the modern nations, formed in this quarter out of the broken fragments of the Western empire, being Christian, and thus deriving their religion and their civilization from the same fountainhead of Rome, settled into something of approximation to one great political community, under the influences, potential when combined, of the military power of the Frankish or Germanic Emperors, and the moral power of the Papal See. of the Papal See. Thus it was that the mass of legal ideas, which we now call the law of nations, came to exist and have authority. It is, in its origin at least, the system of public law of Latin or Western Europe. Establishment 42. This imperfect political unity of Western of an approxi- Europe was obstructed at first by the antagonism of the Celto-Romanic and the Germanic races, and was threatened with complete dissolution when that original antagonism reappeared in the separation of some mate unity of public law. of the Germanic populations from the Papal See, under the popularly assumed religious title of Protestants. But after thirty continuous years of reciprocal devastation and slaughter, the States of the old and new faith concluded a truce at least, if not a peace, and agreed, while acquiescing in the fact of religious difference, to maintain approximate unity of public law, and thus, by subordinating the religious idea to the legal one, to live together in some sort, as they have continued to do, with only occasional spasms of fanatical intolerance breaking out into civil or foreign war. At a late period, Russia, though of Greek faith, came into the European system of public law, with the less difficulty, indeed, for the reason that Latin Europe and Greek Europe alike nourished the legal traditions of the Roman empire, though these be derived in the former case from Rome, and in the latter from Constantinople. a consular office 43. Thus, by the combination of Romanic law and Change in the Christian faith it is that we have come to have nature of the common public law, under whose gradual operation among Chrisclaims of private exterritoriality soon fell into des- tian nations. uetude among the governments of Christendom; Italians in England, and Englishmen in Italy, at length submitted to the local law; foreign colonial nationalities finally ceased to exist of right; their consuls proceeded to sink from the condition of municipal functionaries into that of mere commercial or semi-diplomatic ones; and thus, in process of time, by traditional usage, by positive provisions of local law, and by treaty stipulations, the existing legal character, with its limited rights, was fixed on the foreign consuls mutually accredited in the countries of Christian Europe and America. 44. In our relations with nations out of the pale in Mohamme dan States. ement of public law. Exterritorial of Christendom, we retain for our own citizens and rights retained consuls, though we cannot concede to theirs, the rights of exterritoriality. Religion is the chief repReligion an el resentative sign, and it is an element of the question of public law. But the critical fact is the difference of law. The legislation of Mohammed, for instance, is inseparable from his religion. We cannot submit to one without also undergoing the other. The same legal incompatibility exists, for one reason or another, between us and the unchristian States not Mohammedan. Institutes and Unity in Christendom. 45. Whereas Christendom, on the other hand, in all its subdivisions of race, nationality, and religion, is the common heir of the political ideas, and especi ally the legislation, of the Roman empire; for the Institutes and Pandects themselves, though comprising the sum of the legal science of Rome, were compiled and promulgated at Constantinople, and constitute the broad foundation of the jurisprudence, public and private, of the whole of Christendom. 46. When the countries now Mohammedan shall be resubjected to the doctrines of the Roman law, then can they be admitted to the same reciprocal community of private rights with us, which prevails in Christian Europe and America. Until that event happens, Turkey, and other Moslem States in Africa. or Asia, may, like China or Japan, enter into the sphere of our public law in the relation of government to government, but not in the relation of government to men. That full interchange of international rights is admissible only among the nations which have unity of legal thought, in being governed by, or constituted out of, the once dissevered, but since then partially reunited, constituents of the Græco-Roman empire. CHAPTER III. JUDICIAL AUTHORITY OF THE COMMISSIONER OR MINISTER AND CONSULS OF THE UNITED STATES IN CHINA, 47. THE jurisdiction of the commissioner or minister Act of August and consuls of the United States in China, so far as 11, 1848. regards the forms and the manner of its exercise, is regulated by the act of August eleven, 1848, which was substantially re-enacted on the twenty-second of June, 1860, with such additional provisions as to make it comprehend other countries with which the United States have treaties similar to that with China. These acts purport to have for their object to carry into effect certain provisions, in this relation, contained in the respective treaties between the United States and China, and the United States, the Ottoman Porte, and other countries.2 48. The former act, consisting of twenty-four sec- Mode of intertions, is, of course, to be considered as a whole; and preting it. anything obscure in one part of it is to be elucidated by reference to other parts. 1 This chapter embraces substantially an opinion of a late Attorney General of the United States, Opinions of the Attorneys General, vol. vii. pp. 492-522, which was requested by the Department of State, in reference to the judicial authority of the ministers, and of consuls of the United States in China and Turkey, to whose special attention it is referred for their study and guidance. Since the opinion was given in 1855, the act of June 22, 1860, has been passed, by which many of the provisions of this act have been made applicable to the relations of the United States and its citizens with Japan, Siam, Persia, and other countries. 2 Statutes at Large, vol. ix. p. 276. Its connection with treaties. 49. It is, avowedly, based on the two treaties in question, and especially that with China, and is to be construed in subordination to that and to the constitution. In substance, it accepts and gives actual form to those stipulations of treaty, which confer on all citizens of the United States the rights of exterritoriality in China and Turkey. 50. The legal rationale of the treaty stipulations as to China, with which we are now chiefly concerned, and their relation to the legislative authority of the United States, are explained in the following despatch of the minister who negotiated the treaty: from "I entered China with the formed general conviction that Mr. Cushing's the United States ought not to concede to any foreign State, despatch in ex- under any circumstances, jurisdiction over the life and liberty Extract planation of the treaty. tendom. of a citizen of the United States, unless that foreign State be of our own family of nations,-in a word, a Christian State. International "The States of Christendom are bound together by treaties, law of Chris- which confer mutual rights and prescribe reciprocal obligations. They acknowledge the authority of certain maxims and usages, received among them by common consent, and called the law of nations; but which, not being fully acknowledged and observed by the Mohammedan or Pagan States, which occupy the greater part of the globe, is, in fact, only the international law of Christendom. Above all, the States of Christendom have a common origin, a common religion, a common intellectuality; associated by which common ties, each permits to the subjects of the other, in time of peace, ample means of access to its dominions for the purpose of trade, full right to reside therein, to transmit letters by its mails, to travel in its interior at pleasure, using the highways, canals, stage-coaches, steamboats, and railroads of the country as freely as the native inhabitants. And they hold a regular and systematic intercourse as governments, by means of diplomatic agents of each, residing in the courts of the others, respectively. All these facts impart to the States of Christendom many of the qualities of one confederated republic. |