Judicial Authority of the Commissioner to China.

JUDICIAL AUTHORITY OF THE UNITED STATES COMMISSIONER TO CHINA.

The judicial authority of the United States commissioner to China is restricted to the five ports mentioned in the treaty with that nation.

ATTORNEY GENERAL'S OFFICE,

March 16, 1859.

SIR: I have examined the question submitted to me in your communication of April 21, 1858, relating to the jurisdiction of the United States commissioner and consuls in China.

The third article of the treaty with China provides that "the citizens of the United States are permitted to frequent the five ports of Kwang-Chow, Amoy, Fuchow, Ning-Po, and Shanghai, and to reside with their families and trade there."

The twenty-fifth article of the same treaty provides that all questions in regard to rights, whether of property or persons, arising between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the anthorities of their own Government.

The third section of the act of August 11, 1848, provides "that in regard to civil rights, whether of property or persons, the said functionaries are hereby vested with all the judicial authority necessary to execute the provisions of said treaty, and shall entertain jurisdiction in matters of contract, at the port where or nearest to which the contract was made, or at which it was to be executed; and in all other matters, at the port where or nearest to which the cause of controversy arose, or at the port where or nearest to which the damage complained of was sustained; any such port above named being always one of the five mentioned in the treaty; which jurisdiction shall embrace all controversies between citizens of the United States or others, provided by said treaty." (9 Stats. at Large, 276.) The seventh section of the same act says, "that each of

Compensation of Railroads for Mail Service.

the consuls aforesaid, at the port for which he is appointed, shall be competent," &c.

From the articles of the treaty between the United States and China, and the sections of the act of August 11, 1848, above cited, it is clear that the United States commissioner to China is restricted in the exercise of his judicial authority to the five ports mentioned in the treaty.

Very respectfully, your obedient servant,

Hon. LEWIS CASS,

Secretary of State.

J. S. BLACK.

COMPENSATION OF RAILROAD COMPANIES FOR MAIL SERVICE.

Under the act of March 3, 1845, the maximum allowance for the conveyance of any number of mails in the daytime is three hundred dollars per mile.

ATTORNEY GENERAL'S OFFICE,

March 16, 1859.

SIR: The communication from your Department of the 27th of December, 1858, in relation to compensation to be allowed to railroad companies for mail service, has been considered.

I think the construction heretofore given by your Department to the acts of Congress on the subject is right.

The nineteenth section of the act of March 3, 1845, (5 Stats. at Large, 738) under which the question arises is somewhat obscure. But I can gather from the whole section no other meaning than that which confines the maximum allowance for any number of mails in the day time to three hundred dollars per mile. The first proviso of that section clearly authorized an addition of twenty-five per cent. to that maximum for night service. But the second proviso relating to more than two daily mails does not, in my judgment, warrant an allowance beyond the maximum of three hundred dollars to which reference is made.

The "uniform construction" of your Department, mentioned in the communication I have received, is entitled to

Jurisdiction of Consuls in Turkey.

great weight, and has often been recognized by the Supreme Court as a safe rule of interpretation. I am unable to discover any good reason for departing from it. Very respectfully, yours, &c.,

Hon. J. HOLT,

Postmaster General.

J. S. BLACK.

JURISDICTION OF UNITED STATES CONSULS IN TURKEY.

Under the act of August 11, 1848, the United States consuls in Turkey have judicial powers only in criminal cases.

ATTORNEY GENERAL'S OFFICE,
March 16, 1859.

SIR: I have examined the question submitted to me in your communication of October 2, 1857.

The twentieth section of the act of August 11, 1848, gives authority to United States consuls in China to receive an award from referees chosen by the parties, open the same, and if it is accepted, render judgment, and "execution shall issue in compliance with the terms thereof."

The twenty-second section of the same act says, "that the provisions of this act, so far as the same relate to crimes committed by citizens of the United States, shall extend to Turkey, under the treaty with the Sublime Porte, of May 7, 1830, and shall be executed in the dominions of the Sublime Porte, in conformity with the provisions of said treaty, by the minister of the United States, and the consuls appointed by the United States to reside therein, who are hereby ex officio vested with the powers herein contained for the purposes above expressed, so far as regards the punishment of crimes." (9 Stats. at Large, 279.)

From the section of law above quoted, it is clear that the United States consuls in Turkey have jurisdiction only in criminal cases.

Very respectfully, your obedient servant,

Hon. LEWIS CASS,

J. S. BLACK.

Secretary of State.

Hughes' Case.

HUGHES' CASE.

The appointment of a commissioned officer is not perfected, and is entirely within the power of the President, until a commission is issued.

ATTORNEY GENERAL'S OFFICE,

March 17, 1859.

SIR: From the papers accompanying your letter of the 22d November, 1858, in relation to the appointment of C. F. Ruff as captain in the regiment of mounted riflemen, it appears:

1st. That by an act of Congress of the 19th May, 1846, a regiment of mounted riflemen was raised.

2d. That on the 27th of May, 1846, Bela M. Hughes, of Missouri, was nominated by the President to a captaincy in that regiment, was confirmed by the Senate, the appointment was announced, and orders issued by the Secretary of War to Hughes to report himself.

3d. On the 5th of June, not having received notice of his appointment, Hughes wrote to the President in relation to his application for a commission in the new regiment, in which he announced, for certain reasons therein mentioned, he was induced "to withdraw my name as such applicant.

4th. The President having received this letter, nominated on the 7th of July, 1846, Charles F. Ruff as captain in the regiment, "in place of Hughes, declined;" that appointment was confirmed by the Senate

On the 8th of July, Hughes signified his acceptance of the appointment, but Ruff having in the meantime, received the appointment, he, and not Hughes, was commissioned.

The legality of Ruff's appointment is now contested by B. S. Roberts, who insists that Hughes was, on the 7th of July, "de facto and de jure in the full possession and enjoyment of the rights and subject to the obligations and duties of captain in the regiment," and that Roberts himself, having on the organization of the regiment been appointed

Sale of Military Reservations.

senior first lieutenant, he and not Ruff, by the Army Regulations was entitled to the appointment of captain, made on the 7th of July, "in the place of Hughes, declined.”

It is very clear to my mind that the claim of Mr. Roberts is not maintainable. The appointment of captain was not perfected until the commission was issued.

No commission ever issued to Hughes under the appointment made on the 27th of May, 1846; steps had been taken by the President to fill the post of captain, but the appointment was incomplete, and on the 7th of July, it was entirely within the power of the President to control it, and substitute another, either with or without the declination of Hughes. The declination might be a reason for the President to act, but his power did not depend upon it.

Hughes not having received a commission, was not à captain in the regiment either de jure or de facto.

Ruff's appointment was in my opinion an original appointment within the scope of the presidential power, and there is no reasonable ground to dispute its legality.

Very respectfully, yours, &c.,

Hon. JOHN B. FLOYD,

Secretary of War.

J. S. BLACK.

SALE OF MILITARY RESERVATIONS.

Under the act of March 3, 1819, authorizing the Secretary of War to cause to be sold such military sites as may become useless for military purposes, the Secretary has power to annul and set aside a sale, made by commissioners appointed to carry the act into execution, at any time before final confirmation by him, for any just cause.

ATTORNEY GENERAL'S OFFICE,

March 17, 1859.

SIR: Your letter of the 10th of January, 1859, with the. accompanying documents, shows that certain commissioners, having been appointed by the Secretary of War to make sale of the military reservation of Fort Ripley, in Minnesota, the lands were surveyed and divided pursuant to