memorandum., October 4, 1879

memorandum.

In considering what may he done to secure a more perfect administration of justice in cases in which Chinese are accused by our people of offenses and crimes against their persons or property, or in which reclamations are made of a civil nature, it is necessary to determine, first, the meaning of the treaties as to the manner in which such matters are to be heard and determined. The following statement is submitted by Mr. Seward to indicate the views to which he adheres and the position of his government in the matter.

criminal matters.

Article XXI of the American treaty of 1844 provides—

‘“Subjects of China who may be guilty of any criminal act towards citizens of the United States shall be arrested and punished by the Chinese authorities according to the laws of China. And citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the consul or other public functionary of the United States thereto authorized according to the laws of the United States. And in order to the prevention of all controversy and disaffection, justice shall be equitably and impartially administered on both sides.”

Another article—the XXIX—provides—

That mutineers and deserters from United States vessels shall be arrested by the Chinese authorities and “delivered up to the consuls or other officers for punishment.” It also provides that criminals being subjects of China shall not be harbored or concealed by citizens of the United States, but “shall be delivered up to justice on due requisition by the Chinese local officers addressed to those of the United States,” and “if individuals of either nation commit acts of violence and disorder, use arms to the injury of others, or create disturbances endangering life, the officers of the two governments will exert themselves to enforce order and to maintain the public peace by doing impartial justice in the premises.”

Article XI of the United States treaty of 1858 provides—

“Subjects of China guilty of any criminal act towards citizens of the United States shall be punished by the Chinese authorities according to the laws of China; and citizens of the United States, either on shore or in any merchant vessel, who may insult, trouble, or wound the persons or injure the property of Chinese, or commit any other improper act in China, shall be punished only by the consul or other public functionary thereto authorized, according to the laws of the United States.”

Article XVIII of the treaty of 1858 reproduces without change of language Article XXIX of the treaty of 1844.

Perusal of these several articles will indicate that citizens of the United States in China enjoy complete and absolute extraterritoriality in criminal matters, and that jurisdiction over Chinese who may be guilty of any criminal act towards citizens of the United States remains entirely with the Chinese Government.

In pursuance of these stipulations the United States have, by statutes which were passed, as their texts as well as their titles indicate, “to carry into full effect” the provisions of the treaties, provided for the exercise of jurisdiction in criminal matters over citizens of the United States in China, vesting all jurisdiction in this respect in the consular and diplomatic representatives of the United States in China, subject to appeal in certain cases to the circuit court in California.

The first of these statutes was enacted in 1848, the second in 1860, and the third in 1870. During this period our government has had occasion to deal with practical questions arising under the treaties in the progress of intercourse with China, and no case has occurred in which the extraterritorial privileges of Americans in relation to criminal matters have been called into question. The conditions created in this respect by the treaties stand unaffected by any divergence in practice or by any construction put upon them by either of the two governments.

It is true that of late the Chinese Government has advanced the proposition that the extraterritorial privileges of foreigners extend only so far as to give to them the right of being tried in their own courts, and of being condemned according to the remedies to be found in their own laws; but that $he laws of the Empire are, nevertheless, supreme, and that foreigners are as much bound to respect them as natives.

While it may be admitted at once that justice and fair dealing require that foreigners offending against laws rendered necessary in China as well as elsewhere by a right regard to the safety and convenience of the communities in which they reside and of the government upon whose soil they stand, should be punished for their offenses, it appears difficult to admit the broad proposition that they are amenable to Chinese law in the same sense as natives of China are, or, in point of fact, in any sense which would allow us to assent to the Chinese proposition.

The case indicated in the Chinese circular of March, 1878, will illustrate the point. It is urged that if a given street or passage is closed to the Chinese, and they may be punished for entering it, foreigners must be subject to the same restriction.

It will be admitted at once on the foreign side that it is not lawful for the foreigner to use the given street, and that he may be proceeded against in case he does so. But there is a great divergence between the treatment that he may expect and that which would be meted out against Chinese, for the prosecution in the one instance would take the form probably of a civil action for damages, while the Chinese offending would be dealt with criminally. Or, if it should happen that the laws of the country of the given foreigner would permit of a criminal prosecution, it is quite certain that the punishment inflicted would be wholly different in kind and in degree from that to which the native is subject.

There is, of course, very much in the Chinese code which is barbarous in the eyes of Western people. There is also very much that is singular and which is founded upon different conceptions of right or obligation from those prevailing in the West. Chinese law gives to parents, for instance, far broader authority over their children than is usual with us. The father may, it is said, take the life, even, of a worthless or depraved son. And having such authority a corresponding responsibility is sought to be imposed upon him. He may be punished, not only for the offenses of his child, but also because he has not so instructed him that he would not offend. So, a person who has lost property by theft may be punished for not having kept such watch over his property as to prevent its loss.

It would be idle to say that in such and similar cases foreigners offend against the native law, and that it is the duty of the foreign court to punish them. The simple truth is, that when foreigners are tried in their own courts and by their own laws no indictments against them can be sustained which do not describe offenses which would be punishable by law if committed at home, or which have been made punishable by some provision of the given treaty or enactment made in pursuance of the treaty.

It is not meant by this to assert that the only obligation of foreigners in China is to regard the laws of their own country. In actual practice it comes to this: that foreigners are bound to observe the laws of the Empire so far as they conform to the laws of their own country. It is an offense against China to commit a murder on Chinese soil. 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 he arrested by the Chinese, and they have the right to demand that be shall be tried and punished; 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 asserted 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 he submitted separately, and if my colleagues or any of them differ from the expressions 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.

civil matters.

The United States treaty of 1858 contains three articles which bear upon the subject 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 the latter may seek redress sin law, and, on suitable representation being made to the local authorities through the consul, they will cause due examination in the premises and take proper steps to compel satisfaction. And if citizens of the United States be indebted to subjects of China, the latter may seek redress by representation through 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 between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the authorities of their own government. And all controversies occurring in China between citizens of the United States and the subjects of any other government shall be regulated by the treaties existing between the United States and such governments respectively, without interference on the part of China.”

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

“And 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.”

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

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 hearing and effects of the stipulations which I have quoted, but Mr. Gushing 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. Gushing 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 controversy 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 American. 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 decide all private claims which Chinese may prefer against Americans.
• “Secondly, as to a demand by an American against a Chinese. The former 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 officers 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 consuls to celebrate 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, civil and criminal, of the authorities of the United States.”

The views expressed by Mr. Gushing 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 empire have been constituted, 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 to crimes and, misdemeanors, but also in regard to civil rights of Americans in China.

It is not to be forgotten or overlooked in this connection that, while the earlier act was passed in 1848 and the later act in 1860, the opinion of Mr. Gushing 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 mixed 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 us.

In this connection I have to state farther 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, 1889, instructed the minister “to inform the Chinese ministers of foreign affairs that this government cannot consent to the trial of a complaint [against an American], civil or criminal, otherwise than in the consular courts of the United States. In cases, however, 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 matters 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 considerations upon which the foreign complainant relies.
• Third, that the principle as applicable to mixed cases occurring between British subjects and subjects of China is recognized in the convention made between the plenipotentiaries 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 departures from the rule which have happened at the ports. For it is true that the subject is one of some difficulty, 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 behalf, 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 222). I quote from them as follows:

• “An official having the rank 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. * * *
• “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 meaning 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 iutendant 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 account 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 he the law of the nationality of the officer trying the case. This is the meaning of hui-tung, indicating combined action in judicial 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 has 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, must 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 theTaotai of that circuit acting conjointly, and the application was refused by the judge, who declared that the trial had 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 a latter date, and is a more solemn and authoritative declaration as having 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 American 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 without concert with the other, and assented to directly of 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 he 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 Gen too 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. The principle of extraterritoriality appears, indeed, to receive spontaneous acceptance among Asiatic peoples.

A further 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 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 definite 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 reform.

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 live 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 & 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 practice while at Shanghai, and it is justified by the view of my government, as expressed in the dispatch of February 18, 1869, 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 farther 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:

• 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.
• 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.
• 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.
• 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:
• The declaration of the rules of procedure which are to govern in the trial of mixed cases against Chinese.
• 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.
• 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 he considered at all satisfactory, and the same may he 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 he 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. The 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 presentation of their matters.

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 it affects foreigners is every year becoming less unsatisfactory. The Chinese officials not only evince an increasing degree of trust in our courts, but they are more ready to listen to the complaints of our people. In fact, some instances have recently occurred in which the native magistrates have made haste to repair, unmoved by our consuls, injuries done to the interests of our people by their own. Under such circumstances forbearance becomes more easy and there is room for hope that systematic and well-conceived efforts to secure better conditions will not altogether fail.

The question affecting the mixed court at Shanghai will be dealt with in a separate memorandum.