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It would not be an offense against China if it was not an offense against law in China to do a murder. The person so offending may be arrested by the Chinese, and they have the right to demand that be shall be tried and pavished; in the words of the treaty, "impartial justice shall be done in the premises."

This principle may be carried further, and it may be said that we are bound to provide remedies in cases where the Chinese Government declares unlawful certain acts which are not in themselves criminal but which become so in consequence of enactments made for the public advantage. It cannot be said that throwing ballast overboard in a stream is in itself an offense against law, but the throwing overboard of ballast in a stream when it is prohibited by Chinese law, must be considered an improper act, an offense against the nation, and, as such, we are under obligation to provide a remedy, either by acknowledging the validity of the law, adopting it, so to speak, for ourselves, or by enacting a law of our own to meet the case.

The Government of the United States has not been disposed to split hairs with oriental governments in this matter, but its position may be misunderstood by other governments, and by the Chinese. It has seemed to me well, therefore, to speak with some particularity in order that no wrong ideas may be unnecessarily continued. It has seemed to me the more desirable, also, because the Chinese may be expected to advance this matter in any discussions which may take place with them having for its object the improvement of their own administration, in order that we may reach an understanding as to the language which will be held to them in response.

It does not seem necessary or possible to abandon the simple proposition that our people may be dealt with only in our own courts and according to our own laws. But so far as we can hold language to the Chinese which will indicate that we stand upon their soil in an attitude of respect and with a determination to sustain the government in the essential attributes of sovereignty, I think-and in so holding I maintain only the views of my government—that we ought not to withhold such language, nor fail to sustain it in practice by appropriate action whenever the occasion may arise.

Upon the basis herein laid down I believe that the Chinese Government will hold no dispute with us, and that we may safely approach any of the questions which require attention.

As the treaties generally are essentially the same it does not appear necessary to review their provisions, but I add for convenience the texts of several of them, and remark further only that so far as I am informed no foreign government has questioned the principle that the Chinese remain completely subject to their own authorities in criminal matters, and that all of them by legislation or otherwise have as. serted the treaty exemption of their people from the local sovereignty.

The proposals which I have to submit for the improvement of the native courts will be submitted separately, and if my colleagues or any of them differ from the expres. sions of this part of my memorandum, it may be that they can still support the proposals, it being distinctly understood that the object of this memorandum is to clear the way for a discussion of the proposals, and to guard against errors in any discussion which may take place with the foreign office.


The United States treaty of 1858 contains three articles which bear upon the subjec of jurisdiction and procedure in civil cases.

The first is the XXIV, which reads

“When there are debts due by subjects of China to citizens of the United States th latter may seek redres sin law, and, on suitable representation being made to the loca authorities through the consul, they will cause due examination in the premises ani take proper steps to compel satisfaction. And if citizens of the United States be in debted to subjects of China, the latter may seek redress by representation throug the consul or by suit in the consular court."

The next is the XXVII, which reads

“All questions in regard to rights, whether of persons or property, arising betwee citizens of the United States in China, shall be subject to the jurisdiction and regu lated by the authorities of their own government. And all controversies occurrin in China between citizens of the United States and the sdbjects of any other goverr ment shall be regulated by the treaties existing between the United States and suc governments respectively, without interference on the part of China."

Article XXVIII determines the manner in which citizens of the United States ma address the authorities of China, and Chinese our officers in China, and then provide

“And if controversies arise between citizens of the United States and subjects « China which cannot be amicably settled otherwise, the same shall be examined an decided conformably to justice and equity by the public officers of the two natior acting in conjunction."

These clauses were reproduced in the treaty of Tientsin from Mr. Cushing's treat (Wanghiya 1844) with no change in the wording which affects the intent of the stipu. lation.

Mr. Reed, who negotiated the treaty of 1858, does not appear to have commented at all, in his correspondence reporting the result of his negotiations, upon the bearing and effects of the stipulations which I bave quoted, but Mr. Cushing did so in language of an unmistakable sort. His dispatch to the Secretary of State transmitting the treaty was dated July 5, 1844. It contains the following words:

** Americans in China are to be deemed subject only to the jurisdiction of their government, both in criminal matters and in questions of civil right."

This declaration is repeated by him in a dispatch dated September 29, 1844, as follows:

* In extending these principles to our intercourse with China, seeing that I have obtained the concession of absolute and unqualified exterritoriality, I considered it well to use in the treaty terms of such generality in describing the substitute jurisdiction, as, while they hold unimpaired the customary or law-of nations jurisdiction, do also leave to Congress the full and complete discretion to define, if it pleases to do so, what officers and what powers and in what form of law shall be the instruments for the protection and regulation of the citizens of the United States."

The construction of our treaty thus given by Mr. Cushing is rigidly adhered to by him in his opinion as Attorney-General upon the act giving judicial authority to our officers in this empire, dated September 19, 1855. Mr. Cushing treats the question at much length, and with characteristic learning and acumen. His remarks upon the special topic begin with the words, “As among the nations of Chistendom," and his conclusions are stated as follows:

* First, as to a demand brought by a Chinese against an American. The contraversy supposed is a civil case arising under the treaty. When it arises the proper officers of the two nations will agree that the Chinese shall go into the consular court as plaintiff, and that court will take jurisdiction of the defendant as an Amezcan. Or they may enter into a general agreement, and the commissioner may provide by a standing regulation under the statute that the consular court shall hear and decid all private claims which Chinese may prefer against Americans.

“Secondly, as to a demand by an American against a Chinese. The forner must, of necessity, be content with such judicial or executive action of the Chinese Government in the premises as appertain to their institutions, and as, by special application in each case or by general application, may be required on the part of the public ofti. eers of the United States."

For a further exposition of Mr. Cushing's views I may refer also to an opinion given by him on the 4th of November, 1854, in regard to the authority of ensuls to cele, brate marriages, and in particular to the following language :

" This point (the exemption of our people from the local control) is determined very explicitly in our treaty with China, which, in the most unequivocal terms, places all the rights of Americans in China, whether as to persons or property, under the sole jurisdiction, erril and criminal, of the authorities of the United States."

The views expressed by Mr. Cushing seem to have been those accepted by Congress in dealing with the subject matter.

The statutes of 1848 and 1860, in pursuance of which our courts in this enpire have been constitnted, were enacted, as their texts and their titles declare, “to carry into full effect” the provisions of the treaties. In both may be found provisions under which the consular courts created by them are vested with all the judicial authority, necessary to execute the provisions of the treaties," not only in regard-lo crimes and misdemeanors, but also in regard to ciril rights of Americans in China.

It is not to be forgotien or overlooked in this connection that, while the earlier act was passed in 1848 and the later act in 1860, the opinion of Mr. Cushing is dated in 1855. It was given then in full view of the earlier act, sustaining the proposition that the provisions of that act were in accordance with the stipulations of the treaty, and shows that the later act was not passed in ignorance, but that it confirms the earlier act and the interpretation given in it of the right meaning of the treaties.

The opinion of Mr. Cushing was transmitted to the consuls in China by the Department of State in a letter dated the 8th of October, 1855, “ for their instruction."

In view of the carefulness which the Government of the United States has shown in dealing with this matter, it would be very strange, indeed, if it had misconceived the bearing of the treaties, or had omitted to provide for mired courts if such courts are necessary to carry into full effect the provisions of the treaties. When we find, therefore, that the measures taken by our government contain no provisions for mixed courts, and when, indeed, we can draw to the light no statement made upon authority and based upon the American treaties that such courts are needed to carry into effect the treaties, we must conclude that they are not called for by the treaties as construed by tis.

In this connection I have to state further that one of my predecessors transmitted to the Department of State the code of rules proposed by the Chinese Government for

the control of the so-called mixed court at Shanghai, and that in view of certain ambiguous expressions occurring in the rules, in consequence of inadvertence in the translation, the Secretary, writing under date of February 18, 1869, instructed the minister “to inform the Chinese ministers of foreign affairs that this government cannot consent to the trial of a complaint (against an Ainerican), ciril or criminal, otheruise than in the consular courts of the l’nited States. In cases, houerer, when a Chinese subject may be plaintiff, we have no objection to the presence of an officer of that government as an assessor, but the decision must be made by the consul.

In what has preceded, I have not attempted at all to reason upon the subject, but only to state the views of my government as expressed in the action of Congress and in the declarations of the Executive. It remains to speak, first, of the position assumed by the Chinese ; second, that of other governments; and third, of certain general considerations which must affect our conclusions.

In dealing with the views of the Chinese Government, three very significant facts may be called to mind.

First, that while in theory and in practice, since the beginning of our intercourse under the treaties, the United States have adhered to the principle that civil matters as well as criminal are triable in the courts of the defendants, no instance is on record in which the Chinese Government has complained of our procedure.

Second, that the Chinese Government has established a mixed court, so called, at Shanghai, in which suits against Chinese defendants brought by foreigners may be tried, and that this court is so constituted that the native magistrate decides all matteis coming before him, and that the foreign officer present acts only in the capacity of an assessor or assistant, for the purpose of securing a clear exposition of the facts and onsiderations npon which the foreign complainant relies.

Third, that the principle as applicable to mixed cases occurring between British suljects and subjects of China is recognized in the convention made between the pler potentiaries of Great Britain and China in 1876.

The facts regarding the adherence of our government to the principle of the complete extraterritoriality of our people in civil and criminal matters have been set down already, and their effect as bearing upon the matter in hand is not shaken by the occasional Jepartures from the rule which have happened at the ports. For it is true that the subject is one of some difficnlty, and that in our own and in other consulates the rule has been departed from. Such departures, however, have not been so frequent as to constitute a rule, and, as this dispatch will indicate, they are discredited by the Chinese Government and by the governments of Great Britain and the United States, the three powers whose concern in the matter has been greatest.

The principle governing the mixed court at Shanghai was never doubted by those who promoted the establishment of the court. Of these I was one of the most prominent among the foreign agents acting in this bebalf, with Sir H. Parkes as a committee of the consular body. That principle is set forth in the rules finally adopted by the Chinese Government and communicated to the legations in October, 1868. The rules, as so communicated and as accepted by England and the United States, are printed in Mr. Mayer's book, “Treaties with China, &c.” (page 2:22). I quote from

1. “An official having the rauk of subprefect will be deputed to reside within the foreign settlement.

He will decide all civil and commercial suits between Chinese residents within the settlements, and also between Chinese and foreign residents, in cases where Chinese are defendants, by Chinese law.

2. "Where a foreigner is concerned in a cause to be tried, a consul or his deputy shall sit at the trial with the subprefect.”

The ineaning of the rules quoted from might have been made more clear, perhaps, by the addition to the second one, of words intended to explain that the function of the consul or his deputy is to assist the magistrate only. I am not aware, however, that any one has ever misconstrued the rules, or that any foreign consul or deputy has assumed to sit with the subprefect as judge, having equal and co-ordinate authority.

During my tenure of office at Shanghai, extending over fourteen years, I had, of course, occasion to ask the intendant of circuit to deal with the graver cases brought to my notice by our people. A notable instance was the suit of Hill vs. Takee, in 1875, in which an acconnt of about $200,000 was claimed. The minutes of the trial were published at the time, and show that I sat with the native officer in the trial, and took a large part in bringing the evidence before him and in discussing the case with him, but that I never questioned his right to decide the case, and that he did decide it.

The provisions of the Chefoo convention affecting this question will be found in Mr. Mayer's book, page 46; they are as follows:

“It is understood that so long as the laws of the two countries differ from each other, there can be but one principle to guide judicial proceedings in mixed cases in China, namely, that the case is tried by the official of the defendant's nationality; the official of the plaintiff's nationality merely attending to watch the proceedings

in the interests of justice. The law administered will be the law of the nationality of the officer trying the case. This is the meaning of hui-tung, indicating combined action in judirial proceedings, in Article XVI of the treaty of Tientsin; and this is the course to be respectively followed by the officers of either nationality.”

The question has been raised whether this stipulation refers to civil matters. Its language would seem to indicate that it does, but the reference to the article of the British treaty, which deals with criminal matters, looks in the other direction. I believe that I may say, however, that both the English minister and the foreign office regard the language quoted as covering civil matters, and I have made reference to it in this sense in speaking with the ministers of the foreign office.

As to the views of other foreign governments, I may say that those of England would appear to coincide exactly with those held by the United States. The legislation of England has proceeded apparently upon the proposition that civil trials, as well as criminal, must be heard and determined in the courts of the defendant, and this position has been emphasized by the part taken by English officials in the creation of the mixed court at Shanghai and the stipulation already quoted from the Chefoo convention.

It is quite true that a degree of ambiguity marks the text of the English treaty. Article XXII of the treaty of 1858 reads

"Should any Chinese subject fail to discharge debts incurred to a British subject, or should he fraudulently abscond, the Chinese authorities will do their utmost to effect his arrest and enforce recovery of the debt. The British authorities will likewise do their utmost to bring to justice any British subject fraudulently absconding or failing to discharge debts incurred by him to a Chinese subject."

The language of this article is not quite so explicit and clear as the language of the XVI Article of the United States treaty of 1844, or that of the XXIV Article of the treaty of 1858, yet it is sufficiently clear, as I think, when read by the ordinary rules for the interpretation of public documents, to sustain the proposition that the ultimate recourse of the English claimant is to the native authorities and to the procedure which is sanctioned by their law.

The great stumbling-block in the interpretation of the English treaty bas been found in the XVII Article of the treaty of 1858. That article is as follows:

"A British subject, having reason to complain of a Chinese, inust proceed to the consulate and state his grievance. The consul will inquire into the merits of the case, and do his utmost to arrange it amicably. In like manner, if a Chinese have reason to complain of a British subject, the consul shall no less listen to his complaint, and endeavor to settle it in a friendly manner. If disputes take place of such a nature that the consul cannot arrange them amicably, then he shall request the assistance of the Chinese authorities that they may together examine into the merits of the case and decide it equitably."

In the celebrated case of collision between the Chinese junk Kui-tsai-fah and the English steamer Kwangtung, a motion was made before the chief judge of the British supreme court at Shanghai (February 10, 1875, vide North China Herald of February 11), asking the court to declare null and void a judgment made by the English consul at Foo Chow, and the Taotai of that circuit acting conjointly, and the application was refused by the judge, who declared that the trial bad been conducted in accordance with the XVII Article of the treaty.

It does not appear, however, that this reading of the treaty has been sustained by the English Government by legislation or otherwise ; but, on the contrary, the stipulation regarding the trial of mixed cases to be found in the Chefoo convention was made at å latter date, and is a more solemn and anthoritative declaration as baving been made by the chief representative of Her Majesty's Government in China, and assented to by the Chinese Government.

The XVII Article of the British treaty has its parallel in the XXIV and XXVIII Articles of the Ameriran treaties of 1844 and 1858, respectively, which provide, as has already been shown, that “If controversies arise between citizens of the United States and subjects of China, which cannot be amicably settled otherwise, the same shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction.”

The conclusions of the two governments have been taken, therefore, in view of stipulations of some ambiguity in each case, and the identity of the conclusions reached by each withont concert with the other, and assented to directly or inferentially by China, must go far to strengthen the case for both.

The stipulations of other governments than those of the United States and Great Britain do not differ sensibly from those which have been quoted from the treaties of the latter. In general it may be said that they are neither less nor more explicit. The Danish treaty, however, is an exception to this rule. Its XV Article is as follows:

"All questions in regard to rights, whether of property or person, arising between Danish subjects shall be subject to the jurisdiction of the Danish authorities, and all controversies occurring in China between subjects of Denmark and the subjects of any other foreign power, shall be regulated by the treaties existing between Denmark and such powers, respectively, without interference on the part of China. But if, in such controversies, Chinese subjects be parties involved the Chinese authorities shall be assessor in all proceedings as in the cases provided for by Articles XVI and XVII of this treaty."

The articles here referred to are, first, the article relatiug to criminal jurisdiction, and second, an article which is in the same terms as the XVII Article of the British treaty of 1858.

The Danish treaty was made in 1863, and the article quoted is construed by Her Majesty's minister, who had a familiar knowledge of the negotiations, to mean that cases against Danes are to be heard by the officers of Denmark in the presence of Chinese officials and with their assistance, but that the judgments are to be those of the officer of the defendant's nationality, and reciprocally that cases brought by Danes are to be heard and determined by Chinese officials assisted by officers of the plaintiffos nationality.

The Russian treaty of 1860 contains in its VIII Article the following clause:

“Les contestations qui ne se rapportent point à des affaires de commerce entre marchands, telles que litiges, plaintes, &c., sont jugées de consentement mutuel par le Consul et le Chef local, et les delinquents sont punis d'apres les lois de leur pays."

I am pot in position to state whether the question of jurisdiction involved has been examined into by the several other governments having treaties with China. It would seem, however, that none of the governments have made provision by law for the execution of their treaties on the basis of joint jurisdiction in mixed cases, and that all the legislation which has been enacted has been directed to establish courts before which defendants of the several nationalities, respectively, may be pursued, whether in criminal or civil matters, and that, in practice, civil cases between persons of all nationalities and the Chinese have been tried as a rule in the courts of the defendants,

Having thus dealt with the question as affected by the construction put upon the treaties by the different governments, I pass now to state certain general considerations which must affect our conclusions.

Under this head I desire to point out that the situation created by the treaties as I read them, although abnormal, is not unusual or unprecedented.

Mr. Cushing in his opinion, to which I have already referred, quotes authorities to show that in the middle ages it was “common to give to distinct codes of law a personal application, according to nations instead of a merely territorial force," and states that we have at the moment precisely the same fact before us in British India, where by statute "a case of controversy between Mohammedans is to be governed by their laws and usages, and a case of controversy between Gentoos is to be governed by theirs, and when it is a controversy between a Mobanımedan and a Gentoo the law of the defendant's nation is to be applied to the case.". He carries the argument further, indeed, and points out that in substantial effect the law is administered in the United Statės by nationalities, that is to say, that in certain cases it is determined, not by the place of the individual, but by the State to which he belongs.

It is unnecessary, of course, to extend arguments in this direction. Reference, however, may be made to the treaties between Western powers and Japan in which there is no possible ambiguity of language. Article VI of the American treaty of 1858 is a sample of all in this respect. It reads:

“Americans committing offenses against Japanese shall be tried in American consular courts, and when found guilty shall be punished according to American law, Japanese committing offenses against Americans shall be tried by the Japanese authorities, and punished according to Japanese law. The consular courts shall be open to Japanese creditors to enable them to recover their just claims against American citizens, and the Japanese courts shall in like manner be open to American citizens for the recovery of their just claims against Japanese.”

Articles VIII and IX of the treaty between China and Japan (1871), and IX and X of the treaty between Japan and Corea, contain provisions which practically sustain the extraterritorial system as stated in this memorandum. And within a short period a Corean who committed a murder on Chinese soil was sent to Corea for trial. The principle of extraterritoriality appears, indeed, to receive spontaneous acceptance among Asiatic peoples,

A iurther argument is the one drawn from the necessity of the case. This was clearly expressed in the protocol signed in this city in 1876 by the representatives of Russia, Germany, France, Spain, and the United States. I quote from that paper, as follows:

" It may be said that a foreign officer sitting as co-judge with a Chinese magistrate cannot exercise, in the absence of treaty stipnlations of a more precise nature than those now existing, a greater authority than he would if his voice were consultative only. Each officer has independent functions and responsibilities by reason of his separate position and allegiance, and directs his condnct accordingly. Judgmenta can be enforced as matters stand, only under the forms of law to which the defendant

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