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from wrongful arrest and imprisonment, are grounds for compensatory damages. The precise amount required to make the wronged citizen whole is determined in a suit of law by a jury, and in this case must be fixed through negotiations.
EXTRATERRITORIAL RIGHTS IN CHINA.
AS TO MUNICIPALITY OF SHANGHAI.
The following is a portion of a letter from Secretary Bayard to Mr. Denby, minister to China, dated March 7, 1887," concerning the municipal ordinances of Shanghai, and the authority of the consul-general at that place to enforce them:
I have received your No. 240 of the 12th of November last, touching the projected revision of the municipal regulations and by-laws of Shanghai, and offering certain
pertinent points for the consideration of the Department. Shanghai mu
It appears that by the municipal charter of Shanghai every foreigner owning land of the value of at least 500 taels, or occupying a house of an assessed rental value of not less than 250 taels, is a member of what is called the
municipal body," and is entitled to vote at all municipal elections. The “municipal body” elect at stated times a municipal council, consisting of not more than nine members, who have the power to make regulations for the government of the municipality, subject to the approval of the consuls and foreign ministers, or a majority of
them, and of the ratepayers at a special meeting. Proposed In the proposed revision it is insisted by the municivision of municipal regulations. pality, in respect to any by-law that may hereafter be
passed, that “any such additional or substituted by-law, or alteration or repeal of a by-law, shall be binding when approved by the treaty consuls and the intendant of circuit, or by a majority of them; but the representatives of the treaty powers may, at any time within six months of the date of such approval, annul any such additional or substituted by-law, or alteration or repeal of by-law.”
Your opinion as to this proposed ordinance is in entire accord with that of the Department, that it would reverse
a Wharton's International Law Digest, second edition, vol. 3, Appendix, p. 852.
al's authority to
issue decrees and
the proper order of things and be inexpedient to put in force, without the approval of the foreign ministers, a by-law which they might, in the exercise of an acknowledged power, subsequently disapprove and disallow. This would be in fact the substitution of a power of annulment for the power of veto which the foreign ministers now possess.
The question which you suggest as to the authority of Consul-generthe consul-general at Shanghai to enforce the ordinances enforce municiof the municipality against citizens of the United States is not without difficulty. Under section 4086 of the Revised Statutes of the United States, consuls of the United States in China are empowered to exercise criminal and civil jurisdiction in conformity with the laws of the United States. It is provided, however, that when those laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies the common law and the law of equity and admiralty shall be extended to the persons within the consul's jurisdiction; and if neither the common law nor the law of equity or admiralty, nor the statutes of the United States, furnish the minister may appropriate remedies the ministers in the countries, respec-regulations have tively, to which the statute applies shall, by decrees and inv.the force of regulations which shall have the force of law, supply such defects and deficiencies.
The last clause, in respect to decrees and regulations, has been construed by the Department to confer upon the ministers in question the power to regulate the course of procedure and the forms of judicial remedies rather than any general legislative power for the definition of offenses and the imposition of penalties for their commission. It is true that opinion has been divided on this point. Mr. Attorney-General Cushing held that the power given to the commissioner of the United States in China to make “decrees and regulations” which should have the force of law gave him the power to legislate in certain respects for citizens of the United States in China, and “to provide for many cases of criminality which neither Federal statutes nor the common law would cover." (7 Op., 504, 505.) The disposition, however, of this Department has been to restrict the legislative power of the minister to the regulation of forms and course of judicial procedure, it not being regarded as desirable or proper to authorize the exercise of so great a power, while it was so much in doubt, as that of criminal legislation.
Grounds for Shanghai munic
But the ordinances of the municipality of Shanghai, ipal ordinances, although dependent for their operation as to citizens of
the United States upon the approval of the minister of this Government in China, are conceived to present in one aspect a different question from that of the power of the minister of the United States as to criminal legis.ation. The municipality of Shanghai is understood to have been organized by the voluntary action of the foreign residents of certain nationalities, or such of those residents as were owners or renters of land, for the purpose of exercising such local powers for the preservation of the order and morals of the community as are usually enjoyed by municipal bodies. In the United States, where government is reduced to a legal system, these powers of local police rest on charters granted by the supreme legislative authority of the State; but it is not difficult to conceive of a case in which a community outside of any general system of law might organize a government and adopt rules and regulations which would be recognized as valid on the ground of the right of self-preservation, which is inherent in people everywhere.
In this light may be regarded the municipal ordinances of Shanghai. The foreign settlement not being subject to the laws of China, and the legal systems of the respective foreign powers represented there being not only dissimilar inter se, but insufficient to meet the local needs, it became necessary for the local residents interested in the preservation of peace and order to supply the deficiency.
American citizens residing in Shanghai enjoy, in common with other persons composing the foreign settlement, all the rights, privileges, and protection which the municipal government affords; and as they go there voluntarily, and presumptively for the advancement of their personal interests, they may reasonably be held to observe such police regulations as are not inconsistent with their rights under the laws of the United States. It is true that this reasoning is not conclusive as to the strict legal authority of the consul-general of the United States to enforce such regulations; but, taken in connection with the fact that at present American citizens in Shanghai are not subject to any judicial control except that of the consul-general of the United States, it affords a basis upon which his enforcement of the municipal regulations may be justified.
It is important to observe that the jurisdiction of consuls of the United States in China is very extensive, in
Extensive jurisdiction of consuls in China.
cluding not only the administration of the laws of the United States, and the law of equity and admiralty, but also the common law. The consular courts have, therefore, what the courts of the United States generally have not-common-law jurisdiction in criminal cases. It is true that this jurisdiction is difficult, indeed incapable, of exact definition, but it implies the power to enforce rules which are not to be found on the statute-book of the United States, and which can be ascertained only by the application of the general principles of the common law to special cases and condition. In respect to matters of local police, a fair measure and definition of the law may be found in the regulations adopted by the municipality in aid of and supplementary to the general juridical systems of the foreign powers. Such a process, while maintaining the peace and order of the community, tends to consolidate the local administration of law.
The Department is, however, of opinion that all difficulties would be removed if the treaty powers would adhere to the plan suggested in your dispatch of organizing a municipal court to administer the regulations of the municipal body. This course would be advantageous, both to the municipality and to the treaty powers. It would relieve the consular representatives of the latter from the performance of an embarrassing duty, and would secure a uniform and equal administration of the municipal laws.
COOPERATION OF CIVILIZED POWERS IN NON
CHRISTIAN AND SEMICIVILIZED COUNTRIES.
EXTRACTS FROM BRITISH ADMIRALTY STATION ORDERS
DEPARTMENT OF STATE,
Washington, December 19, 1894. The Honorable The SECRETARY OF THE NAVY. SIR: I have the honor to inclose for your information a
a copy of a note of the 14th instant from the British ambassador at this capital, transmitting a copy of the instructions by which Her Majesty's naval commanders on the Chinese Station for the protection of Europeans at the treaty ports will be governed. I have the honor to be, Sir,
Your obedient servant, W. Q. GRESHAM. 2056-04-12
WASHINGTON, December 14, 1894. SIR: With reference to Mr. Goschen's note of October 27 respecting joint action by the naval commanders on the China Station for the protection of Europeans at the treaty ports, I have the honor to forward to you herewith, at the request of the Earl of Kimberly, a copy of articles 396, 397, 405, 406, and 407 of the station orders for China, which are supplied to naval commanders of Her Majesty's ships.
The lords commissioners of the Amiralty propose, I am informed, to adhere to these instructions, as any further orders would, in their opinion fetter the discretion which in present circumstances it is desirable to give to the British naval commander-in-chief in China in settling with his colleagues the details of the arrangement which may be necessary for carrying out the object in view. I have the honor, etc.,
JULIAN PAUNCEFOTE. The Hon. W. Q. GRESHAM.
As to landing
Armed parties are not to be landed from Her Majesty's parties.
ships to escort consuls proceeding into the interior of the country, except under circumstances of pressing emergency.
2. They are not to be landed during a disturbance, or apprehended disturbance, unless at the written requisition of the consular officer at the port, who is to state explicitly in it:
(1) That the lives, or property, of British subjects are actually in danger from violence, which can not otherwise be controlled (vide article 421, Admiralty Instructions.)
(2) That the local authorities have declined, or are unable to afford the necessary protection.
(3) The number, nature, and arms of the force or mob against which the armed party is required to be landed, also the nature of the locality, or any other information that may enable officers commanding to judge whether the resources at their disposal are sufficient to meet the exigencies of the service required. (Observing that as a rule it is highly unadvisable to risk a reverse by landing a weak party, or allowing them to be entangled amongst the narrow streets, which are usually to be found in most of the towns out here.)
3. The party landed, however small, is to be commanded by a commissioned officer, and is to be kept intact, unless there is a second commissioned officer to command the