No. 54.
Mr. Fish to Mr. Low.
Washington, January 8, 1873.
Sir: Your No. 201, of the 21st of October, 1872, in relation to the trial on a criminal charge of a citizen of New Granada by the United States consul at Canton, has been received.
Mr. Jewell had no authority whatever to entertain jurisdiction of the case. That be should have fallen into the commission of such an error with the laws of the United States, the consular instructions and the existing treaties between the United States and China all before him, seems unaccountable. The reasons assigned by the consul for his action can have no influence or weight in establishing as right a proceeding that is per se wrong. Under the laws of the United States jurisdiction in a criminal case cannot be conferred by consent even in one of the established courts of record of the country. Much less is this the case with the consular court, which is a tribunal of limited and inferior jurisdiction, possessing only such powers as are expressly conferred by acts of Congress in conformity with the provisions of existing treaties.
[Page 140]The waiver of their authority in the matter by the Chinese officials invested the consul with no new or additional powers. He is not an officer of that government, and he can derive no authority from it, directly or indirectly, which will give validity to any official action of his, when such action is not warranted by the laws of the United States or his instructions from this Department. Neither can the jurisdiction assumed in this case rest upon the consent of the accused. It would be unreasonable to demand for a prisoner the right not only to select but to create a tribunal for the trial of his own case; but the objection rest on still higher grounds, and in the interest of the accused himself, lest through ignorance or mistake he may misconceive that interest.
The court before which a criminal trial is proceeding will not, as a general rule, permit the prisoner to waive any substantial right secured to him by law, and never without fully advising him of the consequences of his action.
These principles of criminal law and practice are so well settled and so universally recognized in American and English jurisprudence, that any further discussion of them is deemed wholly unnecessary.
In Oriental countries, where, in order to preserve to citizens of the United States, as far as possible, the personal rights recognized as belonging to them in their own country, it is found necessary to have these rights and the privileges that pertain to them precisely defined by treaty stipulation, it becomes all the more necessary that officers of the United States resident in those countries should, in the exercise of their functions, confine themselves strictly within the powers guaranteed by treaty stipulation and regulated by settled principles of public law. Such a course on their part will not only tend to prevent unpleasant complications, but do much to secure from the people of those countries respect for the rights of American citizens resident therein.
Your course in bringing this matter to the attention of the Department at the earliest moment is commended. The action of Mr. Consul Jewell is disapproved and he will receive information of such disapproval directly from the Department.
I am, &c.,