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intending to be absent turns over the business of his consulate to a colleague. Mr. Bedloe, being about to leave Amoy, transferred the interests of the United States to Dr. Franz Grunenwald, the acting German consul. The selection of Dr. Grunenwald to take charge of American interests was approved by this legation. While thus acting as consul of the United States, Dr. Grunenwald tried St. J. H. Edwards, an American citizen, for forgery, found him guilty and sentenced him to pay $100 fine and costs or to go to jail for one month.

The defendant appealed to the court of the minister at Peking. The appeal was dismissed, under section 4106, page 790, Revised Statutes United States, 1878, because no appeal lies in any case in which the assessors have concurred in the judgment.

On the trial the defendant made the point that the acting consul could not exercise judicial functions. I dismissed the appeal because I had no jurisdiction, but I entertained serious doubts as to whether the acting consul was clothed with judicial power. I therefore advised Mr. Ch. Feindel, the present German consul, acting for the United States, to suspend all proceedings in the case until the question shall have been decided by the Department.

The case is in a nutshell. Section 4083, page 787, Revised Statutes United States, second edition, 1878, confers judicial authority on consuls in China. Section 4130, page 793, same book, defines what officials shall be held to be consuls. It provides that "the word consul shall be understood to mean any person invested by the United States with, and exercising the functions of consul-general, vice-consul-general, consul, or vice-consul."

Because the words "vice-consul-general" were formerly omitted from the revision, and because consular agents were not mentioned, the Department, in Mr. Fish to Mr. Seward, No. 10, January 19, 1876, held that neither of these officers could exercise judicial functions. In that dispatch the Department holds that "no person or officer, except those expressely named or fairly included within the terms of the law, can exercise the powers or functions of a judge."

It seems logically to follow that an acting consul can not exercise judicial functions:

(See, as bearing generally on this subject, the opinion of AttorneyGeneral Cushing of September 19, 1855, construing section 23, act August 11, 1848, which is nearly identical with section 4130, above cited. See also, Wharton's Dig. Int. Law, vol. 1, par. 119–125.)

A plain way out of the difficulty suggested would be to appoint a vice-consul in every consulate. It happens, however, at some of the ports, that no proper person can be found to fill that office.

I have, etc.,

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No. 869.]

Mr. Adee to Mr. Denby, chargé.

Washington, March 22, 1894.

SIR: I am in receipt of a dispatch, No. 1802, of the 31st of January last, from Minister Denby, in which he presents for the decision of the Department the question whether an acting consul can perform judicial functions in China.

There is no such office known to our law as an acting consul and there is, of course, no authority whatever for the exercise by such person of any consular position as pointed out in your dispatch. Section 4130 of the Revised Statutes expressly limits the exercise of judicial functions conferred upon consuls by section 4083 to "persons invested with, and exercising the functions of consul-general, vice-consul-general, consul, or vice-consul."

As bearing directly upon this matter, would call your attention to the opinion of the Attorney-General, rendered under date of May 7, 1891, in response to the following query of this Department:

Can a person placed in charge of a consular office by the incumbent. of the consulate, but without appointment and qualification as prescribed by the Constitution and laws of the United States, perform (1) the regular official duties of the post and (2) notarial and other unofficial services?

The Attorney-General replied:

I am unable to see how a person can lawfully execute the duties of a public office of the United States who has not been clothed with authority to do so by the appointing power of the United States. Such a person can not possibly have any virtue in him as a public officer.

As to the second question the Attorney-General held that the value of such services depends entirely on the fact that the person rendering them is a consular officer, that the United States would seem to be in duty bound to protect the public, so far as it may be reasonably expected to do so, against the exercise of even merely voluntary consular functions by persons not regularly appointed consuls, and that it therefore clearly concerns the United States that no person shall be permitted to exercise the office of consul of the United States in any way who has not been authorized by Congress to do so.

I am, etc.,


Acting Secretary.

No. 1844.]

Mr. Denby, chargé, to Mr. Gresham.


Peking, April 28, 1894. (Received June 1, 1894.) SIR: I have the honor to acknowledge the receipt of your dispatch No. 869, of the 22d ultimo, with reference to the performance of judicial functions by acting consuls.

I have the honor to state that a copy of your dispatch has been sent to the U. S. consul at Amoy for his instruction. He has been advised that the proceedings in the United States v. Edwards, heard at Amoy before Dr. Grunenwald, acting U. S. consul, are void.

I have, etc.,




Mr. Denby, chargé, to Mr. Gresham,


Peking, April 23, 1894. (Received June 1, 1894.)

SIR: I have the honor to report to you a difficulty in which the American missionaries at Nanking find themselves as to the privilege of residing during the summer at the hills adjacent to that city.

In a petition to me they represent that they number over fifty persons, among whom are many women and children. They state that to remain during the summer months within the city walls is dangerous to their health, but that the hills in the immediate neighborhood afford a convenient and suitable resort. During the summer of 1893 they constructed huts in this locality, with the consent of the owners of the soil, and prepared to live there, but the viceroy at Nanking, hearing of this intention, refused his assent, claiming that outside the city their lives would be in danger and that they would be beyond the reach of his protection. Constrained by his orders and threats, they abandoned their summer houses and returned to the city. This year they asked again to be allowed to go the hills and were again refused. The intervention of the U. S. consul at Chinkiang in their behalf was fruitless, his notes on the subject not even having been answered. Under these circumstances they appeal to me.

The facts of this case seem to be as follows:

It is certainly true that continued residence within the walls of Chinese cities during the heated season is accompanied with great discomfort and some danger to health. The proprietors of the hillside which the Nanking missionaries wish to occupy are willing to rent to them, and the people in the vicinity would gladly have them come because of the small trade that they bring with them. The assertion that they would be in danger is a mere pretext. Should, however, actual danger threaten, the hill is only 3 miles distant from the viceroy's yamên, and protection could easily be extended. The missionaries assert that, under any circumstances, a tent of four soldiers would guarantee their safety and the cost of these they are prepared to pay. In view of these circumstances, and in view of the fact that throughout China foreigners are allowed to resort at pleasure to the hills adjacent to the cities where they live, I have asked the Yamên to extend this privilege to the missionaries at Nanking and to post a proclamation in the locality for their protection while there.

The general right of the missionaries to reside at Nanking is not involved in this dispute. Their residence there has long been uncontested and they have as good a prescriptive right to remain there as at any place in China.

** *

I hope, however, that the Yamên will overcome the viceroy's opposition. The Yamên has referred the case to him and upon receipt of his reply the matter will be further reported to you with copies of the correspondence.

I have, etc.,


No. 1856.]

Mr. Denby, chargé, to Mr. Gresham.


Peking, May 23, 1894. (Received July 18, 1894.) SIR: Referring to my dispatch No. 1839 of the 23d ultimo, regard. ing the refusal of the authorities at Nanking to permit the American missionaries to reside during the summer at the hills, I have the honor to inclose a translation of the Yamên's reply to my dispatch.

It will be seen that the viceroy at Nanking reasserts the danger to missionaries of residence without the city, and on this ground alone bases his refusal. I do not believe, nor do the missionaries themselves,

that any such danger exists, and I will again address the Yamên, urging that they be authorized to make a trial of hill residence to show that their fears are without foundation.

I have, etc.,

[Inclosure in No. 1856.]


The Tsung-li-Yamên to Mr. Denby, jr.

MAY 21, 1894.

SIR: Upon the receipt of your note with reference to the desire of the missionaries at Naking to resort, during the heated season, to Hsi Hsia Shan (hills near Nanking), this Yamên forwarded a copy of the list of names inclosed by you to the southern superintendent of trade that he, being informed thereof, might take proper action in the matter. Now we have received a reply from him as follows:

As China has authorized the building of churches and the propagation of Christianity in the interior, there would seem to be no reason in prohibiting to missionaries the simple privilege of resorting to certain places to escape the heat. The real reason therefor is to be found in the fact that the conditions are not the same within and without the capital. The mountain to which the missionaries wish to resort is desolate and retired and few people live there. Since the building of churches at Nanking to the present time missionaries have never repaired to the mountains during the summer, and there is no provision in the treaties authorizing them to do so. Throughout the Yangtzu Valley the popular mind is in an unsettled condition. Between the populace and the missionaries exists a great antipathy. Even within the cities where churches are protected by the magistrates, the suspicions of the people sometimes lead to trouble. If at some remote locality in the hills, the local officials would with difficulty learn of such troubles and would more than ever be unable to afford protection.

In the ninth year of Kuang Hsü (1883) the consul and merchants at Chinkiang wished to build summer residences at the Wu Chou Mountains. The literati and the people were opposed, however, and it was difficult to accord permission. Hence the project came to an end.

Now it is to be remarked that the missionaries in this case live in a locality in the northern part of Nanking which is half city, half suburb. It is quiet and pleasant to live in, not crowded and confused, and free from turmoil. Why should they, under these circumstances, search for other summer residences in the hills, causing endless trouble?

This Yamên begs to observe that the argument of the southern superintendent of trade is reasonable and his statements are true. It is, therefore, our duty to request you to direct the said missionaries to abandon their project and thus avoid giving rise to trouble.

We have, etc.

No. 1861.]


Mr. Denby, chargé, to Mr. Gresham.

LEGATION OF THE UNITED STATES, Peking, June 8, 1894. (Received July 18, 1894.) SIR: I have been advised by the U. S. consul at Canton, under date of the 21st ultimo, that the long-standing trouble between the missionaries and the local authorities at Kiungchow, in the island of Hainan, over a piece of property, has culminated in the seizure of the land in dispute by the authorities and the forcible ejectment of the missionaries therefrom.

The gravity of this case has been, the consul assures me, greatly exaggerated and the difficulties of it have been largely due to the indiscreet conduct of the members of the mission. He hopes to arrive by patience at a satisfactory arrangement of the dispute, and to this end has asked me to bring the matter to the attention of the Yamên. The circumstances of this case are as follows:

Eight or nine years ago Mr. Jeremiassen, a Danish subject belonging to the American Presbyterian Mission, brought about the purchase of a piece of land at Kiungchow by a native Christian. This land was then conveyed by the native Christian to Mr. Jeremiassen, and by him to the American Presbyterian Mission. The deeds were recorded in the U. S. consulate at Canton. In September, 1886, this last deed and six antecedent deeds were sent by the consul to the taotai for authentication, in accordance with Chinese custom. These deeds have never been authenticated nor returned and they remain to this day in the possession of the authorities. To demands for their restoration, the authorities reply that the seller had no right to sell without the consent of others; that the Chinese buyer was a fictitious personage (the mission dares not produce him for fear of persecution), and that the ground is unsuitable for missionary purposes, as it adjoins a spot where the Chinese have, or will soon have, a powder magazine. They offer to return the $800 of purchase money to the mission. In the meantime the property has remained in the possession of the missionaries, who have used a small building on it as a dispensary.

The consul has been trying to induce the authorities to assist in procuring another site, and in April last the viceroy at Canton offered to instruct the local officials to consult with the missionaries on this ques tion. But, as a preliminary to these negotiations, he insisted that the missionaries should receive the purchase money back, thus giving up all claim to the land which has been, until its recent seizure, in their possession. This the missionaries refuse, and demand on their part the issuing of a proclamation informing the people that no one will be punished for selling land to foreigners or Christians, which, they say, would remove all difficulty as to securing another site. To this the viceroy does not consent.

In this deadlock matters remained until very recently. A few weeks ago the missionaries, impatient of delay, prepared building materials for the construction of houses on the disputed ground. They appealed to the consul at Canton for protection in this operation. To his representations to the viceroy on the subject he received a reply that no harm should come to anyone, but that no building on the land would be permitted. Affairs came to a crisis on the 13th ultimo.

On the evening of that day some officers of the district magistrate's Yamên, accompanied by three literati and some employés, removed the contents of the building on the ground in dispute, affixed another lock to it, closed it and locked it, and thus practically ejected the mission from the premises.

The lack of judgment displayed by the missionaries in attempting to build in the face of decided official opposition constitutes no justification for such arbitrary proceedings. The consul at Canton took up the case, and, after consultation with the more experienced missionaries of that locality, decided to recommend the missionaries not to attempt to erect buildings at present, and in the meantime to urge the viceroy to cooperate in the selection of another site, and to issue a proclamation assuring immunity from persecution of Chinese who may propose to sell land to foreigners. He also requests this legation to bring before

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