grantors, thus recognizing the rights of the United States; that as the United States did not enter into this convention, or any treaty, it is unable to understand upon what grounds it was attempted to confer the mandate without its agreement, as the League had no authority to confer, and the Council none to confirm, the mandate in this respect, and it can have no efficiency as to the United States.

That the decision of May 7, 1919, cannot bind the United States, and the brief minutes of that meeting of the Supreme Council could not be construed without regard to other proceedings of the Council, and that these show the reservations as to Yap made by President Wilson and the details appear in his statement to the Department of State of March 3, 1921. This statement shows that his attention was first called, in October, 1920, to the contention that the decision of May 7, 1919, assigned to Japan a mandate for Yap. He restates his specific reservation as to the same and says he assumed these would be duly considered in the settlement of the cable question; that he never abandoned or modified his position as to Yap, and never agreed that the same be included in the mandate to Japan; that all agreements as to mandates were conditional on a subsequent agreement being reached as to the specific terms of the mandate and, further, on their being accepted by each of the Principal Allied and Associated Powers.

Mr. Hughes said further that, as the decision of May 7, 1919, did not, and in the nature of things could not, have finality, the United States saw no ground for the contention that it was its duty to make immediate protest and that omission thereof operated as a cession of its rights; that as soon as its attention was called to the claim of Japan (through the Conference on Communications of October, 1920), it at once informed Japan and the other Powers that it understood that Yap was not included in the mandate.

He expressed the regret of his government that, despite the above, there had been an attempt to pass upon drafts of mandates, including Yap, and to put the same in effect, in the name of the United States, without its assent; that it assumed such action was taken under a misapprehension and would be reconsidered; that the United States must insist that it has not lost its right or interest as it existed prior to action of the Supreme Council or the League of Nations, and that it cannot recognize the allocation of the island or the validity of the mandate to Japan; that the United States seeks no exclusive interest or any privileges not accorded to other Powers, including Japan; that relying on the sense of justice of the Government of Japan and of the other Allied and Associated Powers, it looks with confidence to a disposition conserving the just interests of all. The reply of France of April 7, 1921, stated that she would "broach the examination thereof with the greatest desire to find a solution which will give every satisfaction to the United States" and that she had already

done all in her power to aid the American Government in the matter; that the Japanese Government was cognizant of the American reservations, and that there were elements for a resumption of conversations between the United States and Japan.

On April 29, 1921, the Italian Ambassador at Washington handed to the Department of State a note from his government, in which it expressed complete agreement with the text of the American note of April 5th, concerning the equality of right among mandatories in the exercise of their mandates. It, moreover, expressed her expectation that the Conference of Ambassadors in Paris "will pronounce itself with equanimity in such a way as to eliminate every possibility of disagreement and to conciliate all conflicting interests."

On May 23, 1921, it was announced that the Department of State had received a communication from Japan in which Japan is understood not to have taken a definitive position. The tone of the communication is announced as satisfactory and the officials are satisfied with the progress toward a solution of the question. The contents of the note, however, were not made public, but there is no impassé.

The matter of correction seems to rest with the Supreme Council which, through misapprehension, took the action in question.

The contention of Mr. Hughes is far-reaching and seems, if successful, to unsettle the right to all overseas possessions of Germany under mandates issued without the consent of the United States and, moreover, without consent by formal treaty. The argument which he advances, however, is very logical and apparently incontrovertible. "To the victors belong the spoils." If they have conquered by joint action, they own the spoils as joint owners. Even in case of private joint owners, it is submitted, there is no right of a majority to dispose of the interest of a minority. The rule that the majority can control has no application to the disposal of property so held. If Spain had ceded the Philippines to three nations, for instance, to the United States, Germany and Japan, two of these Powers could not have transferred the complete title to the islands and thus altered or diminished the right and title of the third. An agreement or solemn treaty by the United States and Germany transferring the islands to Great Britain would have been wholly ineffective as to the interest of Japan. That interest would have persisted unaltered and unaffected.

The rule spoken of applies much more widely and absolutely in all international transactions than in matters of private property. It is universally agreed, it is believed, that a sovereign nation by joining in an internatioal congress or conference in no way submits to be bound by a majority, unless she has so expressly agreed. Her sovereignty remains unimpaired and unsurrendered. Therefore, conventions adopted at the Hague Conferences required unanimous action to be controlling on all, and nations refusing to concur were acknowledged not to be bound. Nu

1

merous examples of such refusals will occur to any student of those conferences. Professor Oppenheim in his great work on International Law, in discussing the procedure of international congresses and conferences, says: "The motion must be carried unanimously to consummate the task of the congress, for the vote of the majority has no power whatever in regard to the dissenting parties." And Professor Hershey 2 lays down the rule thus: "To give full legal validity to a vote or resolution, practical unanimity is necessary, though the majority may consider the motion. binding upon its members."

The Supreme Council, which is in the nature of an international conference, plainly cannot, by a majority vote, deprive any nation even if there represented, of rights or territory unless that nation acquiesce.

The Japanese argument must be deemed inconclusive, inasmuch as it assumes that the United States must show that the exceptions and reservations as to Yap interposed by the representatives of the United States were ratified and adopted by the Supreme Council or the Council of the League. As the rights of the United States in the conquered territory were derived from their association in the victory, and not conferred by the Supreme Council or by the League or its Council, they could be subjected to the control or modification of those bodies only by appropriate action on the part of the United States itself, and none such ensued. No power to cede territory to a foreign nation is believed to be vested in any branch of the Government of the United States except in the treaty-making power. That power involves the action of the President and the concurring action of two-thirds of the Senate.

That acquiescence for a length of years and conduct inconsistent with ownership may be evidence against a nation, as against an individual, tending to raise an equitable presumption of transfer or loss of title, may be admitted. But there has been no such lapse of time or laches in the present matter. All the transactions are recent. Not even the time which by municipal law outlaws a simple account, has elapsed, much less that which applies to landed property.

It is believed that, in the interest of all nations, the internationalization of the cable rights on the island will be consummated by amicable adjustment. This disposition invades no rights, aggrandizes no one Power, and safeguards all. It must, therefore, meet the grateful commendation of the vast majority of men and nations. No act on the part of Japan could more strengthen and emphasize her entente with the other great Powers than her acquiescence in this readjustment for the common good.

1 Vol. I, p. 512.

CHARLES NOBLE GREGORY.

2 Essentials of International Public Law, p. 309.

THE RELINQUISHMENT OF EXTRATERRITORIAL JURISDICTION IN SIAM

On December 16, 1920, there was signed on behalf of the United States and Siam, a treaty revising the conventions theretofore existing between the two countries, as well as a protocol attached to and made a part of the treaty. In April, 1921, the Senate advised and consented to ratificaOn May 6th, the President ratified the treaty. In many respects the annexed protocol embraces the most important and distinctive portion of the arrangement. Doubtless in Siamese opinion it is of vast significance; for it marks a definite achievement in the effort long in the making, to free Siam from the obligation to permit the exercise of extraterritorial jurisdiction by American authorities in its territory. This accomplishment has been in part the result of the protracted and unremitting labors of three distinguished Americans-Strobel, Westengard, and James—who in turn, for a period covering some twenty-five years, have striven successfully to place the institutions and judicial system of Siam on a plane such as to command the full respect of the outside world.1

Article I of the protocol announces that the system of jurisdiction established in Siam for citizens of the United States, and the "privileges, exemptions, and immunities" now enjoyed by them as a part of or appurtenant to that system "shall absolutely cease and determine on the date of the exchange of ratifications," and that thereafter all citizens of the United States and persons, corporations, companies, and associations entitled to its protection in Siam shall be subject to the jurisdiction of the Siamese courts. Article II sets forth, however, a condition subsequent, which for the time being, modifies or restricts the full operation of the foregoing provisions. It is there declared that until the promulgation and putting into force of all the Siamese codes, namely, the Penal Code, the Civil and Commercial Codes, the Codes of Procedure, and the Law for Organization of Courts, "and for a period of five years thereafter, but no longer," American diplomatic and consular officials in Siam, may, whenever they deem it proper to do so in the interest of justice, and by means of written requisitions addressed to the judges of courts in which such cases are pending in any Siamese court except the Supreme or Dika Court, demand the transfer of the particular case to themselves, in which an American citizen or a person, corporation, company, or association entitled to the protection of the United States is defendant or accused. Upon the transfer of a case to American authority for adjudication, the Siamese jurisdiction is to cease; and the case so evoked is to be disposed of by the diplomatic or consular official in accordance with the requirements of the appropriate laws of the United States. There is, however,

1 It should be borne in mind that the indebtedness of Siam to foreign counselors and jurists is not confined to those of American nationality. It is understood that English lawyers have rendered vast aid in the task confronting that country.

an important limitation in this regard. With respect to all matters coming within the scope of codes or laws of the Kingdom of Siam regularly promulgated and in force, of which the texts have been communicated to the American Legation in Bangkok, it is declared that the rights and liabilities of the parties shall be determined by Siamese law. That law is obviously to be applied by the American tribunal. For the purpose of trying appropriate cases and of executing judgments to be rendered therein, it is announced that the jurisdiction of the American diplomatic and consular officials in Siam is continued. It is also declared that should the United States perceive, within a reasonable time after the promulgation of the codes above specified, any objection thereto, the Siamese Government will endeavor to meet such objections.

According to Article III, appeals by persons and entities entitled to American protection, from judgments of courts of first instance in cases to which they may be parties, shall be adjudged by the Court of Appeal at Bangkok; and an appeal on a question of law shall lie from that tribunal to the Supreme or Dika Court. Again, such persons or entities who are parties defendant or accused in any case arising in the provinces, are to be permitted to apply for a change of venue, and should the court consider such change desirable, it is provided that the trial shall take place either at Bangkok or before the judge in whose court the case would be tried at Bangkok.

In order to prevent difficulties arising in the transfer of jurisdiction, Article IV makes specific and ample provision. Thus all cases in which action shall be taken subsequent to the date of the exchange of ratifications of the treaty are to be entered and decided in the Siamese courts, regardless of whether the cause arose before or after that date. Again, all cases pending before American diplomatic and consular officials on that date are to take their usual course before such officials until final disposition, the American jurisdiction remaining in full force for that purpose. In connection with any such case or with cases evoked by American officials for transfer to themselves, it is declared that the Siamese authorities shall upon American diplomatic or consular request, lend their assistance to all matters pertaining to the case.

It remains to be seen whether, should the treaty and protocol come into force through an exchange of ratifications, American diplomatic or consular authorities in Siam will deem it necessary to assert the right to evoke cases and thereby effect their transfer. It is not improbable that pending the promulgation of the Siamese Codes, or within the five-year period thereafter, there may be no strong disposition to substitute American for Siamese courts. It must be emphasized that the protocol contemplates normally adjudications concerning American citizens before Siamese tribunals, and a transfer therefrom only under the conditions specified, and which may not in fact arise. More important, however, is