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2. Controversies between citizens of the United States and China may be settled by suit brought in the tribunal of the defendant's nationality according to the law of the defendant's nationality. An official of the plaintiff's nationality may be present.

3. Disputes between citizens of the United States in China are subject to the jurisdiction of the United States.

4. Controversies between citizens of the United States and citizens or subjects of any other government shall be regulated by the treaties existing between the United States and such government.

SOME DEFECTS IN EXTRATERRITORIALITY

When China declared war against Germany and Austria the treaty rights of those countries were abrogated and the right of extraterritoriality was taken from them. China has refused to restore those advantages, and in the trade agreement which was signed with Germany on May 20, 1921, it was provided that the life and property of the nationals of either power traveling or residing within the territory of the other shall be under the jurisdiction of the local courts. Furthermore, in September, 1920, China withdrew recognition from the Russian Government. This left the Russians in China without any official representatives; and their cases must now be tried before Chinese officials, acting in place of the Russian consular tribunals. These steps toward the abolition of extraterritoriality have given China the hope that in the near future the entire system may be done away with. Indeed it was with such a hope that the representatives of the Chinese Republic, when presenting their case at the Peace Conference at Paris in 1919, requested, among other things, that extraterritoriality should be abolished.

In connection with this request it is necessary to discuss, first, what are the disadvantages that are claimed against the system; and secondly, whether the laws of China show promise of becoming sufficiently in accord with western standards of justice to be acceptable for the government of foreigners in that country.

Before examining the facts, however, it may be pointed out that there are strong reasons for expecting an indifferent administration of the law under a system of extraterritoriality. A crime is an offense against society which society must punish. An aroused public opinion gives vigor to the enforcement of the law, demands adequate police protection and jail facilities and upholds the hands of the judiciary. With public opinion awakened the machinery of the law will operate smoothly; but when the public slumbers an inevitable inertia results. Under a system of extraterritoriality the injured society is powerless to apply punishment to foreigners who offend against it. Foreign officials must pass judgment upon them. There is no aroused public sentiment urging the foreign government to a vigorous enforcement of its laws. An indifference results, which is only

increased by the element of racial prejudice. From this point of view it appears that extraterritoriality, however necessary it may have been, has a fundamental weakness, and that the true and normal system of criminal punishment is that which has grown up with the system of international law in the West under which the courts of a country have jurisdiction over all crimes committed within the territorial boundaries.

After extraterritoriality had been in operation for fourteen years in China the American Minister, Mr. Reed, roundly condemned the failure to punish adequately Americans who were guilty of crime in that country. He said: "We extort from China 'ex-territoriality,' the amenability of guilty Americans to our law, and then we deny to our judicial officers the means of punishing them. There are consular courts in China to try American thieves and burglars and murderers, but there is not a single jail where the thief or burglar may be confined. Our consuls in this, as in many other particulars, have to appeal to English or French liberality, and it often happens that the penitentiary accommodations of England and France are inadequate to their own necessities, and the American culprit is discharged. I consider the exaction of 'ex-territoriality' from the Chinese, so long as the United States refuse or neglect to provide the means of punishment, an opprobrium of the worst kind. It is as bad as the coolie or the opium trade. ''16

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This early experience has been corroborated by a number of opinions since that date. In 1864 Minister Burlingame wrote to the State Department in regard to the execution of one Buckley for the murder of a Captain McKennon: "Such men as Buckley had so long escaped punishment that they had come to believe that they could take life with impunity. The United States authority was laughed at and our flag was made the cover for all the villains in China.''17 The next year Samuel Wells Williams, Chargé d'Affaires, wrote: "Cases have already occurred in China of aggravated manslaughter, and even of deliberate killing of the natives by foreigners, whose crimes have been punished by simple fines or mere deportation or short imprisonment; while foreigners strenuously insist on full justice when life is taken by the natives, or maiming with intent to kill. ’’18

In 1871 Mr. Seward, Consul-General at Shanghai, wrote: "It would be difficult to say that the extraterritorial system is not often productive of injustice to the Chinese. A few years ago the Viceroy at Nanking, in presenting a case on behalf of some poor boat people, whose vessel had been sunk by a foreign steamer, declared that the frequency of such accidents had so aroused the people along the river that he feared they would

16Sen. Doc. 30, 36th Cong., 1st sess., p. 355.

17U. S. Foreign Relations, 1864, Part 3, p. 400. 18Ibid., 1865, Part 2, p. 454.

endeavor to make reprisals should the foreign courts continue to refuse redress. ''19

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In 1876 Sir Robert Hart, Inspector General of the Imperial Maritime Customs, in speaking of the defects of extraterritoriality, commented as follows: "Chinese complain that foreigners assault Chinese with impunity; that what China calls murder is invariably excused or made manslaughter by foreign courts; that where Chinese law prescribes death the offending foreigner is sentenced to only a short imprisonment; and that, while the foreigner insists that Chinese shall be punished with death where foreign life has been lost, he, on his side, expects China to accept a small sum of money in lieu of a death punishment where Chinese life is lost. ''20

In 1883 a riot against foreigners occurred in Canton and a large amount of property was destroyed. The feelings of the people had been aroused by the killing of a Chinese by a British subject while the latter was in an intoxicated condition. There was great fear on the part of the Chinese that the culprit would either be released or escape with a trifling • punishment. While they were in this state of mind another Chinese was killed by a Portuguese watchman; and then the trouble broke loose.21

A case occurring in 1904 will further illustrate the indifference of foreigners to crimes committed against the Chinese. In September of that year in Canton an unoffending Chinese of good standing in the community was seized by a group of drunken sailors and thrown into the water, where he was drowned. All of the witnesses subsequently examined, both foreign and Chinese, testified that the crime had been committed by American sailors. Mr. Conger, the American Minister, Mr. Rockhill, his successor, and the American Consul-General at Canton considered that the identity of the culprits as Americans had been established. But no one was ever brought to justice for the offense. A great deal of intense feeling was aroused in Canton on account of the crime; and the native and foreign press was very caustic in commenting on this apparent breaking down of justice. The native press in particular contrasted the indifference of the American enforcement of the law in this case with the unusual energy displayed in demanding redress for crimes committed against foreigners by Chinese. The American Government finally paid an indemnity of $1,500 to the family of the murdered man.22 But the feeling was only partially allayed; and in the case of the Lienchou murders a year later, when five Americans were killed, the Canton correspondent of the North-China

19U. S. Foreign Relations, 1871, p. 170.

20 Morse, op. cit., Vol. II, p. 457.

21U. S. Foreign Relations, 1884, p. 46 et seq.

22U. S. Foreign Relations, 1905, p. 112; North-China Herald, Vol. 73, pp. 960, 1015.

Herald attributed the anti-American feeling, which was a partial cause of the crime, to the failure of justice in the case of the murder at Canton.23

An examination of the adjudicated cases compels the conclusion that oftentimes offenses committed by foreigners against the Chinese have not been rigorously punished. In a British case, reported in 1897, it was alleged that the accused, the quartermaster of an English steamer, had pushed a Chinese coolie from a pontoon alongside the steamer into the river, with the result that he was drowned. Two Chinese witnesses swore positively that they had seen the crime committed, and one Englishman swore that he had seen the Chinese slip and fall into the river. It took the British jury five minutes to reach a verdict of not guilty.24 The North-China Herald in commenting upon the case said: "The philanthropist who cannot allow that the value of a man's evidence in a court of law is affected by his colour, his race or his education might be inclined to express some surprise at the issue of the trial.

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The failure to apply the law strictly in cases of crimes against the Chinese is most to be noted in cases coming before the consular courts. Consuls are political officials and more apt than the ordinary judge to be influenced by a regard for their own nationals. A few instances of cases arising in the United States consular courts will serve to illustrate this point.

In one case the accused was found guilty of entering a Chinese tailor shop, knocking down a Chinese boy and attempting to make away with some clothing. When the tailor tried to restrain him the accused fired a revolver at him. The accused was sentenced to pay five dollars to the tailor and was told to leave town. If he returned he would be sentenced heavily.20 Two American sailors, who broke into a Chinese house and assaulted the occupants, were fined fifteen dollars each. The Consul said: "American sailors must plainly understand that when they come ashore in Shanghai they must behave themselves."'27 An American serving as constable of the river police at Shanghai, in compelling certain Chinese to move their boat, kicked and struck one of them, causing his death. He was sentenced by the American Consul to eighteen months' imprisonment.28 It is difficult to conceive of a case more pregnant with possibilities of international hatred than this that a police officer of an alien nationality should so brutally mistreat a Chinese subject, and that there should be no recourse but submission to the infliction of a comparatively slight penalty upon the slayer by a foreign tribunal.

23 North-China Herald, Vol. 77, p. 373.

24 Regina vs. Ryan, North-China Herald, Vol. 59, p. 280.

25 North-China Herald, Vol. 59, p. 245.

26U. S. People vs. Nash, North-China Herald, May 14, 1903, p. 948.

27U. S. People vs. McCoy and Taylor, North-China Herald, July 14, 1905, p. 100.

28U. S. People vs. J. G. Munz, North-China Herald, Nov. 4, 1904, p. 1043.

Undoubtedly the creation of the United States Court for China in 1906 had a very beneficial effect upon this situation. The trained judge is ostensibly more apt to make a just and impartial application of the law than a non-judicial officer. Shortly after this court was established a great deal of favorable comment was excited by the prosecutions which were instituted in it and which resulted in cleaning out certain disreputables from among the American element at Shanghai. There is no doubt that so far as the cases which come within the jurisdiction of the United States Court are concerned there has been little cause for complaint. Nevertheless shortly after the opening of this court a case arose which brought forth a protest on the part of the Chinese.

The facts were: In May of 1907 Henry N. Demenil, an American citizen, was traveling in the Province of Yunnan along the Tibetan frontier, contrary to the terms of his passport. The Viceroy of Szechwan had sent with him two Chinese soldiers to act as an escort for his protection. Becoming angry with one of the soldiers for his delay while at a small village, the American obtained possession of the rifle of the soldier and sought to frighten him by firing in his direction. The second shot struck a Tibetan lama, who was travelling along the road a short distance away, and killed him instantly. The prisoner was acquitted on the grounds that there was not the least criminal intent in his act.29

The Prince of Ch'ing of the Chinese Foreign Office wrote the United States Minister, Mr. Rockhill, as follows: "The decision of the judge that the affair was accidental and that no punishment should be inflicted, nor even a fine assessed for the lama's death, how can this satisfy the minds of men or display justice? . After thus taking human life he is not convicted of any crime, and is not even fined. The great wrong done the murdered man is not in the least atoned for. When the people of Szechwan and Yunnan hear of this the hair will rise on their heads. In this case justice does not shine and the good name of America suffers.''30

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It was explained to him in reply that a fair trial had been accorded the accused, and that according to the Constitution of the United States he could not be retried. Furthermore, the American Government was unable to furnish compensation to the relatives of the deceased, as had been requested; but it was suggested that a civil suit for damages for the death of the lama could be brought against Demenil if he could be found within the jurisdiction of a competent court.31

In commenting on the general situation, W. W. Willoughby, an eminent political scientist with experience in China, remarks: "One cannot shut his eyes to the fact that there is usually a strong bias in favor of his own nationals upon the part of the Consul or other foreign official who 29U. S. vs. Henry N. Demenil, North-China Herald, Dec. 6, 1907, p. 606. 30U. S. Foreign Relations, 1909, p. 56.

31Ibid., p. 62.

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