Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1892
Mr. Denby to Mr. Blaine.
Peking, May 18, 1892. (Received June 28.)
Sir: I have the honor to inclose herewith a copy of a dispatch sent by me to Consul-General Leonard, on the subject of his jurisdiction to try an American citizen, James A. Frame, on a charge of murder, for a homicide committed at Shanghai. The facts and conclusions of law are fully set out in the inclosure. As there may be some delay in the action of the consul-general, I would be glad to know whether the Department agrees with my opinion.
I have, etc.,
Mr. Denby to Mr. Leonard.
Peking, May 18, 1892.
Sir: I have the honor to acknowledge the receipt of your dispatch No. 106 of May 10, 1892.
You therein inform me that James A. Frame, an American citizen, did, on the 1st instant, at Shanghai, shoot and kill George Lemon, an American citizen.
[Page 114]At the time of the killing Frame was the jailor of the American consulate, and was acting as deputy marshal. You set out the verdict of the jury at the inquest held on the body of the deceased. You proceed to state that doubts have arisen in your mind whether the case is triable by the minister or the consul-general. You quote section 4109, 2 R. S. U. S., 2d ed., 1878, which provides; “That in cases where a consular officer is interested, either as party or witness, such minister shall have original jurisdiction.” You express the opinion that the words “consular officer” are applicable to Mr. Frame, and define his status, and are to be held as ousting you of jurisdiction and conferring it on the minister. You further state that the deceased is said to have applied vile epithets to the officers of the consulate-general, and that these utterances will probably be brought out in evidence. You suggest that you might be “biased” by such language, and that you are disqualified to try the case as judge.
I have uniformly refused to give any opinion on the merits of any case which might be tried before me on appeal in advance of the submission of such case to me after the trial thereby and in due course of procedure. If there were, in my view of the questions presented by you, any possibility that the accused could suffer any injury by my giving to you advice on the technicalities suggested should such advice prove to be erroneous, I would, undoubtedly, withhold any advice whatever, and leave you acting judicially to decide on questions as they arise in the case without the shadow of any interference by me, as is your undoubted right so to do. But it is difficult to to see how Frame can be injured by your retaining jurisdiction. If he is convicted of a capital crime the law (sec. 4102, R. S. U. S., 2d ed., 1878) requires that the minister shall approve the conviction. I should certainly not approve a conviction in a case in which I thought a trial court had no jurisdiction. If he is convicted of a less offense and sentenced to imprisonment only he has his remedy by habeas corpus, if there were no jurisdiction. Nor can he be injured by the proof of the language uttered by the deceased embodying abuse of the officers of the consulate. Such utterances might injure the prosecution, but certainly would not injure the defense.
Having undertaken to show that no possible harm can befall Mr. Frame by my advising you that you have jurisdiction, I now proceed to state the grounds of my opinion on the facts stated by you, that you alone can try the accused. I give such opinion from a sense of duty, because as nobody else can legally hear and determine the cause, if you decline to do so there may be a failure of justice.
If on the trial proof were made of the occupation of the defendant and such proof caused you to decide that you had no jurisdiction and that you discharged him, he would go forever acquit if your decision were erroneous, because he would have been once in jeopardy.
The plain and simple answer to your doubts as to jurisdiction is that the words “consular officer” used in section 4109, above quoted, mean a consul, and not the employés or subordinate officials of the consulate.
Webster’s definition of the word “consular” is “pertaining to consul, as consular power, consular dignity, or privileges.” A jailor or marshal can not be said to pertain to a consul. The offices of jailor and marshal are distinct and separate from the office of consul. The holders of them do not pertain to the consul any more than the interpreter or the Chinese writer do. The consul is charged by law with the duty of hearing and determining all cases. He is relieved from this duty only when he is a party to the action or an interested witness in the cause. As a man ought not to be allowed to decide cases in which he is personally interested, ex necessitate, some other official must hear such cases. This is the reason of the law. There is no reason why a consul should not hear causes in which his subordinates are interested. It is to be noticed that in the United States practice there is no change of judges allowed on account of bias. In the State courts there is. The Government can never object to bias of the judge even in the State courts. It does not at all matter in considering the question of jurisdiction how much a judge is biased against the Government. The defendant is not hurt by such bias. He can not, therefore, complain of it, and the Government has no remedy against its effects, whatever they may be.
As I look at sections 4102 and 4106, R. S. U. S., 1878, 2d ed., it seems to me that capital punishment can not be inflicted on an American in China unless six men concur in the judgment. Four citizens are to sit on the trial with the consul, who shall himself render the judgment, the assessors concurring. Then the minister must approve the sentence.
I have thus given you my opinion in the interest of justice, but without prejudice to the accused. Should you become convinced that you have no jurisdiction, care should be taken that such decision be announced before the impaneling of the assessors, who act in China as jurors. The accused should be kept in jail or released on bond, as you may decide, until some arrangement can be made for his trial. I am thoroughly satisfied that I have no jurisdiction to try him, but I am not infallible. It may be that discussion of the question, with the aid of legal opinions from Washington, [Page 115] may change my views. Please understand that while I give you my opinion I do not expect you to act upon it unless it, upon reflection, satisfies your mind that you have jurisdiction. You are charged with the responsibility of life and death, the heaviest that ever rests on any judge. A serious doubt as to jurisdiction should certainly prevent any judge from awarding capital punishment. You can throw the ultimate responsibility on me, but if the serious doubt remains in your mind subsequent regret and possibly self-reproach will not be prevented by my decision.
Entertaining such a view the case should be continued and should be referred to the State Department. While the Department has no right to control you when acting judicially, still it is likely that its carefully prepared argument would settle the point one way or the other and relieve you from all doubt.
I am, etc.,