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 relating 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 plaintiff's 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 not 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 Mohammedan 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 States 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. principle of extraterritoriality appears, indeed, to receive spontaneous acceptance among Asiatic peoples. This was

The

A further argument is the one drawn from the necessity of the case. 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 stipulations 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 conduct accordingly. Judgments

can be enforced as matters stand, only under the forms of law to which the defendant

and the judge of his nationality are subject. It may be said, indeed, that in effect no judgment can be given that does not conform to the laws of the defendant's nation, and that Chinese and foreign laws do not always fall within the same line."

Perhaps no stronger argument in favor of the proposition that civil matters between Chinese and foreigners must be tried in the court of the defendant could be stated than the one which is implied in the foregoing statement. It is one of the first principles of interpretation of public instruments that they shall be construed with regard to actual conditions. In this instance the conditions indicate that no other procedure can be successfully prosecuted, and it must be supposed that the framers of the treaties appreciated this fact and intended that their work should be interpreted accordingly. The protocol of 1876 raises another point of great importance. If civil matters are to be heard in courts in which native and foreign officials having co-ordinate and equal authority sit as the judges, it is more than probable that such courts will lean to the application of native law as being that of the natural sovereignty. In such event the gravest dangers might be apprehended, as, for instance, in the definitions of rights and obligations, as of married persons, the succession to property real and personal, the construction of contracts, &c.

It may be answered that one of the treaties (the Russian already quoted) provides for a joint hearing and the application of the law of the defendant in determining the judgment. This proposition is much more satisfactory than one which appeals to no code or body of laws. But it does not alter the fact that the voice of the officer of the plaintiff will be as strong if he is held to act in a consultative capacity as in the absence of more clearly drawn stipulations it could be were he to assume equal authority with the judge of the defendant. And what do we come to upon this basis but this, that for no essential purpose we must undertake to provide with China regulations defining the way in which judges so acting shall exercise their authority, who is to preside, who is to decide disputed points in procedure, and what is to be done in regard to differences of opinion upon final judgment, or otherwise. In point of fact, a court composed of two judges belonging and owing allegiance to different nationalities, passing upon matters arising between persons of different nationalities, and in which, while each has equal powers, no referee is provided for, is, to say the least, inconvenient. In such a court there can be no award unless both judges agree. It is a court, indeed, the like of which probably has never been seen in any land or in any condition of society.

Nor does the matter become better when we remember that no appeals or ultimate recourse from such courts have been provided for, either in the treaties or in any other way.

It comes, then, to this, that while upon the theory that all civil matters are to be tried in the court of the defendant, there are open to complainants against Chinese the courts of the Empire and to complainants against foreigners the consular and other courts which have been established in China by the several foreign governments, upon the other theory we stand utterly unprovided with information as to the rights, powers, and responsibilities of the judges whether upon the trial or afterwards, and it becomes the duty of the several governments to take steps at once to remedy a condition of things which is unsatisfactory in the extreme.

The question arises here whether it may not be possible to establish a system of mixed courts resting upon the basis of the treaties as they are construed by some persons, and provided in pursuance of further and more detinite agreements with the Chinese Government, with a staff of judges with rules of procedure and appropriate codes of law.

This question was considered in 1876, and the conclusion of the foreign representatives then present was, that whether eventually efforts so directed may be desirable, the time has not yet arrived to undertake the work.

The establishment of mixed courts, that is to say, the inauguration of a complete system such as the term implies, would indeed be no slight undertaking.

It has been urged that the work has been done in Egypt and that it may be repeated here. But what has been done in Egypt, certainly with a very large measure of success, may not be possible in China. The rulers of Egypt were men some of whom at least were educated in the schools of Europe, and some of them, including the Khedive, were not only persons of enlightened understandings but earnestly bent upon working out the reform. In China, however, there are no indications that the government appreciates the insufficiency of its judicial system, and, so far as I know, not one person among the Chinese has moved for refo m.

Who, then, is to undertake the great labor of preparing a code, of organizing a scheme for the establishment of mixed courts, of persuading the Chinese Government to accept them and of bringing about those negotiations with foreign States which must be carried to completion before the scheme can be put into operation? This government stands wrapped in the traditions of centuries, accustomed to look to the past for all the wisdom which is needed in conducting the affairs of State, as immovable as anything in the way of government can be conceived to be. What hope is there,

then, of securing action upon the subject in the near future or finding the government earnest in standing by the new establishment when created?

The situation here is different from that in Egypt in another important particular. A foreign population of 100,000, or more persons, is resident in the narrow district which comprises the habitable section of that country. In China there are barely five or six thousand Europeans and Americans, and these are scattered along a sea coast of more than 2,000 miles, in isolated and frequently unimportant communities. The imperative necessity of reform which was felt in Egypt cannot be felt here under such circumstances, and neither can it be possible to introduce the system of mixed courts upon so extensive a plan as to serve the purpose everywhere and in a uniform

manner.

But supposing that the scheme may be inaugurated successfully, would it, after all, be in the direction of progress so entirely as may be thought at first sight? To-day we enjoy the benefit of the extraterritorial system, perfectly. It is our own laws which are administered among us, and these are administered by our own functionaries, assisted by unofficial citizens in an important way. We do not always have trained officers, and doubtless some grievous wrongs have been done in China in the name of justice, yet persons of Anglo-Saxon or other origin may be better satisfied with this imperfect system than to submit to codes of practice and law which must necessarily vary in many respects from the system to which each has been accustomed in his natural home.

While it is possible for us to reason in this way, may it not be possible for the Chinese to reason in the same manner with even more force? If their people are obliged often to put up, in their prosecution of foreigners, with what they may consider failures of justice, they at least are not judged by codes and in courts foreign to their education and experience, the intricacies of which, if made to suit us, would long remain inscrutable to them. The elaborate and expensive systems of Europe may not be at all suitable for the purposes of justice here, as applied to the Chinese.

Complicated as is the extraterritorial system, it has this merit, it is not difficult for Asiatic States to assent to it, for it is one with which they have long been familiar. Japan and China, as has been shown, have based their own relations upon it. Both fret under it as imposed by foreigners, not so much because of any injury it has worked in its right application, as because its intent has been strained sometimes and because foreigners in zeal for reform have instilled wrong ideas of the objects of foreign States. But even so, it is easier for an Asiatic State to yield foreigners broadly to the jurisdiction of their own officers than to attempt to establish quasi national mixed courts whose judges can be named only under guarantees. The indignity of the extraterritorial system may come home to them sometimes. The indignity of having to accept foreign dictation in the appointment of officers in their own pay could hardly be felt less. Is it not true, moreover, that progressive measures to be successful must be undertaken within normal lines of experience and capacity? We may accomplish much in China by the force of example. I hope that our own courts and the courts of other countries are doing much in their way. If the lesson to be drawn from them shall be

adopted into the Chinese system, which, bad as it is, must have many merits, progress will run in a right direction. It is by the amelioration of the native system rather than by fastening upon the Chinese still another abnormal and exotic institution that I think the best results may be accomplished.

There is no country, I feel sure, which wishes to perpetuate here unnecessarily the extraterritorial system. To this government our own has said more than once, that it will be ready to lay down that system when China shall have demonstrated that it is no longer a necessity. To Japan we have said the same thing, and in both countries an effort is being made to learn what our laws are, with a view possibly to ascertain how far they may be safely incorporated among their own. To this good work we have contributed largely in various ways, and notably by offering educational facilities to the youth of both countries. Is it too much to hope that under all the influences at work both countries will come sooner or later to enter upon efforts of a very positive sort to demonstrate that their administration, when it touches our own, is not to be condemned and may be intrusted safely with the administration of justice? It would be idle to deny, however, that the mixed courts proposal is one which is greatly favored by foreigners in China. There is an abiding distrust of the native courts, resultant from bitter experiences on the part of foreigners and from the general ignorance which prevails among us of Chinese modes of reasoning and procedure, But so far as the proposal can be pursued, having regard to existing treaty stipulations and to Chinese methods and rights, I am in favor of it.

To be more exact, there is much in the treaties which will justify us in demanding that the native courts shall be open to our suitors and that our own officers shall be allowed to sit upon the trial to assist the native magistrate in the investigation of the facts and the law, and in the preparation of a careful record. When so constituted the given court will have many of the features of a mixed court. We can perhaps yield as much to native officers in our own courts. This at least was my own

1

practice while at Shanghai, and it is justified by the view of my government, as expressed in the dispatch of February 18, 1ɛ69, from which I have already quoted.

We may indeed go further, and endeavor to secure from this government the adoption of rules of procedure upon such trials which will conform more or less to our own practice, and still later the adoption of a code by which commercial cases shall be decided in the native courts. If the regulations and the code as proposed agree measurably with the principles familiar to us, a degree of uniformity in practice and in judgments may be expected which will leave little to be desired at the moment, and the encouragement given to China will be greater, as I think, than if we pursue the idea of mixed courts. For after all these can be expected to last only during the period of transition, and may of themselves bar efforts in the direction of the only progress which will be normal, that by which China shall move towards the establishment of a more satisfactory yet purely national system of jurisprudence.

There may be some who will say, and certainly with great force, that we are not looking now to results which, if possible at all, must be very distant; that we need at the moment a system which will give better results to the persons actually upon the scene. To such I answer that if mixed courts properly so called can be introduced in any near future, we shall not hasten the day by departing in advance from the position which has been created for us by the treaties. Nor, as I think, shall we hasten the day by attempting at the moment to commit the government to the proposal to establish such courts. Whatever may be the ultimate object, the object now is to take tentative steps intended to secure a measure of benefit at once, and which will leave us at liberty to move for broader results later on, in view of further experience and a larger study of the subject.

We come now to the defects of the Chinese system, and to a consideration of the measures which may be undertaken in order to secure a more satisfactory condition of things so far as our interests are affected thereby.

In the protocol of 1876, the following language is used:

"There can be no doubt that the state of the Chinese judicial establishment, as it affects foreigners, is unsatisfactory. No code of procedure worthy to be called such exists. The magistrates, secretaries, and constables are often corrupt. Judgments are secured only after a great deal of exertion, and persistent efforts have to be made to secure their execution. Serious annoyances arise from the fact that it is often difficult to discover the officer who has jurisdiction in given cases, and to whom the consular officer should apply to secure a hearing for his countrymen, and again because so far as foreigners are concerned no Chinese appellate courts exist. For the latter reason questions which should be decided by appeal can only be treated by political recourse through the diplomatic agents, and become the subject of long and annoying negotiations."

To this statement should be added the further fact that in matters of complaint, both criminal and civil, but particularly in the latter, the Chinese officials frequently place difficulties in the way of the appearance of the prosecutor, and that no adequate records are kept, so that attempts to secure revision of their action is attended with unnecessary difficulties. It happens sometimes, moreover, that the consular officer is refused the position and authority at the trial to which he is entitled by treaty, or, if not by treaty, by the necessities of the case as growing out of the peculiarities of the Chinese system.

Adhering, then, to the proposition that all cases, criminal and civil, are to be heard in the court of the defendant, and in view of the statement just made of the defects of the present situation, I submit that the better administration of justice in cases in which foreigners are complainants requires:

1st. That the courts in which, at the several ports, the complaints of our people, criminal and civil, are to be heard and determined should be designated.

2d. That the right to appear in person and with their witnesses, and to have compulsory process to compel the attendance of native witnesses, should be acknowledged. 3d. That all trials should be open and the consul of the complainant entitled to be present, to sit with the magistrate, and to assist in placing the evidence before the

court.

4th. That in graver cases and in all cases, when demanded, a full and accurate record of all the proceedings, the evidence, &c., should be made.

The reforms more urgently needed, as I think, are embraced in the foregoing four paragraphs. We may move, however, to secure further:

5th. The declaration of the rules of procedure which are to govern in the trial of mixed cases against Chinese.

6th. The declaration of the laws of China, in commercial matters more particularly, or, in default of such laws, for the preparation of a code to be used in cases in which Chinese are defendants.

7th. The establishment of a court of appeal for the revision of all proceedings of the courts of first instance.

Upon these several propositions I remark as follows:

In regard to the first, it will not be necessary as I think to go further than to commit the government to instruct its provincial officers to declare to the consuls at the several ports in what courts such matters are to be heard. Circumstances differ at the several ports, and it might be difficult for the government here to name the courts, or even to adhere rigidly to arrangements made under the rule.

In regard to the second, the right of personal appearance, as has been shown, has not always been admitted. It is essential to any system which may be considered at all satisfactory, and the same may be said of the right of the complainant to the compulsory attendance of witnesses. It happens frequently in China that native witnesses are very averse to making an appearance in court.

In regard to the third proposal, the considerations which demand that trials shall be open are obvious, and the principle is substantially acknowledged in the Chinese system. It is only in the case of foreigners that ordinary matters are heard with closed doors. In speaking of the presence of the consul and his functions, it is to be said that the Chinese system does not admit of the intervention of unofficial persons as counselors and advocates, that such persons are in fact unknown among the Chinese, and that suitors are not always treated with becoming deference. In a general way it may be said that a foreign suitor would have extreme difficulty, if unassisted by his national officer, in placing his case before the court and in securing a record.

It is not to be forgotten, on the other hand, that what we demand from the Chinese in this respect will be demanded by them in return in cases where their complainants are concerned as against our own people. It is desirable, therefore, not to be over-explicit as to the functions of the consular officer, lest something may be demanded in return which would be inconvenient for us to admit. A great deal must be left, under the circumstances, to the tact of the given consular officer when sitting in a Chinese court, and to be determined, upon the other hand, by the established rules of our own courts when Chinese officers are present to watch the proceedings of our courts. Chinese system, although undefined, is elastic, and experience has demonstrated, as I believe, that when we have once secured for consular officers a standing in the court, they will be able, without difficulty, to aid their nationals perfectly in the presenta

tion of their matters.

The

In regard to the fourth proposal, no part of a judicial officer's duty is more important and nothing is more essential to the interests of justice than that a complete record shall be made. Such records do not seem to be required by Chinese law, at least are not provided for in the penal code, and, so far as my observation has extended, have never been made in mixed cases excepting upon the request of the foreign official interested.

In regard to the fifth proposal, I should say that, subject to the general proposals herein made, the preparation of a code of procedure is not so essential a matter as to demand attention in the capital. It is the part of courts everywhere to frame their own rules, and these may be worked out best, as I think, by the local officials and the consuls concerned. There is, moreover, much in the Chinese procedure to which we could not formally assent. A Chinese magistrate who had been forbidden to use the bamboo upon a recalcitrant witness would consider that his opportunities to do justice had been practically cut off, yet no foreign representative would care to approve the use of torture. Our presence in their courts will invariably discourage its use and may bring about its discontinuance, but to-day it is an integral part of their system to which they adhere with the greatest tenacity. This was shown at Shanghai and here when the mixed court rules were under discussion.

In the sixth proposal, I have, had in view not only the fact that their commercial law is but little better than an indigested series of precedents based upon local customs and local decisions, but also the further fact, that any code which they may consent to frame will be very imperfect at first and built up by slow degrees. I have not proposed that such code shall be made applicable to foreigners, but, of course, if it shall come to be sufficient there will be many reasons why foreigners should adopt it. It is enough to say that there is no hope to-day that the Chinese could be brought to provide a code at any near date under which we could judge our people and they theirs. As for the court of appeal proposed under the seventh head, I fear that we must consider it also a matter to be kept in view and worked for with no immediate prospect of success. As matters go, all appeals against the decisions of the native magistrates in cases in which our people are concerned become matters for political representation here in the capital. In putting forward, then, a proposal for the establishment of an appellate court, we shall have frequent opportunities to urge the matter upon the foreign office.

It is a proposition which stands by itself, and which can be thrown into definite form when the right moment arrives.

In submitting this memorandum to my colleagues, I must apologize for its length. It has been drafted for momentary use and without time to compress it into briefer form.

In submitting it I desire also to record my impression that the judicial situation as