HOUSE OF REPRESENTATIVES. No. 1311. }

PRACTICE OF PHARMACY AND SALE OF POISON IN CHINA.

JANUARY 23, 1915.-Referred to the House Calendar and ordered to be printed.

Mr. FLOOD of Virginia, from the Committee on Foreign Affairs, submitted the following

REPORT.

[To accompany S. 6631.]

The Committee on Foreign Affairs, to which was referred the bill (S. 6631) to regulate the practice of pharmacy and the sale of poison in the consular districts of the United States in China, having had the same under consideration, reports it back with the recommendation that it pass.

The reasons why this bill should pass are so strongly presented in a memorandum prepared by the State Department and in a communication from the Secretary of State that this committee can do no better than to adopt the same as a part of this report.

MEMORANDUM I.

REASONS MAKING IT NECESSARY THAT THE CONGRESS SHOULD ENACT THE ACCOM

PANYING BILL.

In the autumn of 1906 the Chinese Government determined to bring to an end the practice of opium smoking in China. In support of China's effort the United States immediately proposed to Austria-Hungary, China, France, Germany, Great Britain, Italy, Japan, Netherlands, Persia, Portugal, Russia, and Siam that an international commission should be assembled to study and recommend means by which the IndoChinese opium traffic and the collateral traffic to the Philippine Islands and other eastern territories might be brought to an end. That commission assembled at Shanghai in February, 1909, and in the course of its deliberations on the opium problem it was demonstrated that in the three preceding years the Chinese Empire had been flooded with so-called opium remedies largely manufactured by foreigners resident in the treaty ports of China, and that these so-called antiopium remedies were composed largely of opium and morphine. It therefore appeared that China's heroic effort to suppress the habit of opium smoking would be frustrated because the habit of swallowing opium was about to take the place of the habit of opium smoking.

The International Opium Commission promptly recognized this fact when demonstrated by the Chinese commissioners, and a means to prevent the replacement of the old habit of opium smoking by opium swallowing and the responsibility of foreigners in the treaty ports of China for the new habit had to be thought out.

After a thorough discussion between the American and Chinese commissioners it was decided that the commission as a whole should recommend to their Governments that they apply their national pharmacy laws to their subjects in the consular districts, settlements, and concessions in China, the object being to prevent foreigners in China manufacturing wholesale and placing on the market so-called antiopium remedies which contain nothing but opium and morphine. Therefore the commission as a whole adopted the following resolution, which was introduced by the American delegation:"

RESOLUTION 9-INTERNATIONAL OPIUM COMMISSION.

"Be it resolved, That the International Opium Commission recommends that each delegation move its Government to apply its pharmacy laws to its subjects in the consular districts, concessions, and settlements in China."

As the American commissioners, after consultation with the Chinese commissioners, were responsible for this resolution, it was incumbent upon the American Government to be the first to apply any national pharmacy act on the statute books to its subjects resident in its consular districts in China. The only national pharmacy act on the statute books is "Public, No. 148: An act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for other purposes.'

This act was therefore taken as a model of the act which the Chinese Government expected that the American Government would apply to Americans resident in China under those treaty stipulations which are briefed in another memorandum. The modification of "Public, No. 148," which accompanies this memorandum, was passed by the Senate on June 25, 1910, but failed of action in the House, and the matter has rested until the present moment.

Following upon the unanimous action of the International Opium Commission in condemning the evils associated with the opium traffic, this Government proposed to the other interested Governments that an international conference, composed of delegates with full powers, should meet at The Hague to give the force of law and international agreement to the resolutions of the International Opium Commission. That conference assembled at The Hague on the 1st of last December and, after signing a convention, adjourned on the 23d of the following January. Amongst the most important articles signed by the delegates on behalf of their Governments were those which confirmed to China the abolition of the Indo-Chinese opium traffic. (See Ch. 4, International Opium Convention, p. 34, S. Doc. No. 733, 62d Cong., 2d sess.) Article 16 of Chapter IV of the International Opium Convention is the pertinent one so far as the proposed legislation is concerned. That article is as follows:

ARTICLE 16.-INTERNATIONAL OPIUM CONVENTION.

"The Chinese Government shall promulgate pharmacy laws for its subjects, regulating the sale and distribution of morphine, cocaine, and their respective salts, and of the substances indicated in article 14 of the present convention, and shall communicate these laws to the Governments having treaties with China through the intermediary of their diplomatic representatives at Peking. The contracting powers having treaties with China shall examine these laws, and, if they find them acceptable, shall take the necessary measures to the end that they be applied to their nationals residing in China."

Thus it will be seen that the powers having treaty relations with China, amongst them the United States, have entered into a solemn pledge with the Chinese Government to apply such pharmacy laws to their nationals residing in China as will regulate the sale and distribution of opium, morphine, and cocaine, the object being to prevent the nationals of the treaty powers flooding China with remedies containing opium which are more baneful in their effects than the evils of opium smoking, which the Chinese are successfully suppressing.

This pledge on the part of the United States can be redeemed by the passage and approval of the accompanying bill.

In regard to the proposed bill, it can be stated that as a pharmacy act it is as satisfactory as Public No. 148, on which it is modeled, which has been in force in the District of Columbia for several years, and which has proved to be as efficient and workable as the pharmacy acts of any of the States of the Union.

As to the law features of the proposed bill as they affect Americans in China, it may be said to be without fault. It represents the combined efforts of Mr. Hamilton Wright, who has been in charge of the international aspects of the opium work on behalf of the American Government, of the members of the Far Eastern Division, and of the solicitors of the Department of State. Since its drafting it has been sub

mitted to Judge Thayer, of the United States Court in China, and to several of the American consuls general in that country. They have all commended it from the point of view of principle, and regard it as practicable and well within treaty and statutory law under which Americans reside in China.

It should be borne in mind that the Chinese Government has by resolution in the International Opium Commission and by treaty stipulation in the International Opium Convention requested this Government to pass this act, and that all Chinese conversant with the question will welcome the present act, if passed and approved, as a model act on which a Chinese national pharmacy act may be based.

MEMORANDUM II.

The bases for American jurisdiction over Americans resident in China are founded: 1. On the right of citizens of the United States to frequent the open ports of China. 2. On the right of the American Government to superintend and regulate the concerns of citizens of the United States doing business at the open ports of China, together with the right of the United States to appoint consuls or other officers at the same ports.

3. The judicial authority of the United States over citizens who reside at the open ports of China.

First. By Article III of the treaty of Wang Hea between United States and China, 1844, citizens of the United States were permitted to frequent the five ports of Quangchow, Amoy, Fuchow, Ningpo, and Shanghai, and to reside with their families and trade there; to proceed at pleasure with their vessels and mechandise to and from any foreign port and either of the said five ports, and from either of said five ports to any other of them. (See p. 474, Treaties Between China and Foreign States, vol. 1.) The provisions of Article III of the treaty of Wang Hea were reaffirmed and broadened by Article XIV of the treaty of Tientsin between the United States and China, 1858, and there was added to the five ports mentioned in Article III of the treaty of 1844 Swatow, Canton, and Taiwan in the Island of Formosa. (See p. 315, ibid.)

Second. By Article IV of the treaty of Wang Hea it is provided that for the superintendence and regulation of the concerns of citizens of the United States doing business in the five ports mentioned in Article III of that treaty the Government of the United States may appoint consuls or other officers at the time, who shall be duly recognized as such by the officers of the Chinese Government. (See p. 474, ibid.)

Article X of the treaty of Tientsin of 1858 reallirms this right of the United States to appoint consuls at all of the open ports of China.

Third. By Article XXI of the treaty of Wang Hea, 1844, the judicial authority of the United States over its citizens who are in residence at the open ports of China was reaffirmed, it being provided by Article XXI that 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 authorized according to the laws of the United States, while subjects of China who may be guilty of any criminal act toward citizens of the United States were to be arrested and punished by the Chinese authorities and according to the laws of China. (See p. 481, ibid.) The provision of this article was amplified by Article XXV of the same treaty, which provides that all questions in regard to rights, whether of property or person, arising between citizens of the United States and China shall be subject to the jurisdiction of 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. (See p. 483, ibid.)

Article XI of the treaty of Tientsin, 1858, reaffirmed and amplified Article XXI of the Treaty of Wanghea. (See p. 513, ibid.)

Since these treaties were negotiated the Congress has passed several acts relating to the rights of American citizens in China, and to consular and to judicial jurisdiction over them. The earliest act of Congress which applies was that of August 11, 1848. (9 Stat. L., 276.)

In reporting the bill the Senate Judiciary Committee stated that the measure was considered necessary to the execution of the treaty of 1844 with China. The next legislation was that of June 22, 1860 (12 Stat. L., 72). It was occasioned partly by the newly made treaty with China commonly known as the Tientsin treaty of 1858. It extensively amplified and improved the earliest legislation, and, together with the act of July 1, 1870 (16 Stat. L., 183), relating to appeals in certain cases, formed the

basis of the law as embodied in the Revised Statutes, sections 4083, 4130. (See p. 787, R. S. U. S., 2d ed., 1878.)

It is repeatedly declared in these statutes that they are intended to carry into effect the treaties which have granted extra-territorial jurisdiction to the United States in China, as well as other oriental countries. The jurisdiction as provided for in China is described with some fullness. The second leading feature of these statutes is that they set forth what law is to be applied in consular courts. (Secs. 4086, 4117-4120, 4126.) The jurisdiction in both criminal and civil matters is to be exercised and enforced in conformity with the laws of the United States, which are by these statutes, and so far as necessary and suitable under the treaties, extended over all citizens of the United States in China, and over all others who may have the right of American protection. If the laws of the United States, the statutes continue, are not adapted to the object of the treaties, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall extend in like manner over citizens and other protected persons in those countries. And if neither the common law nor the law of equity or admiralty nor the statutes of the United States furnish appropriate and sufficient remedies, the American minister in China shall issue regulations which shall supply such defects and deficiencies and shall have the force of law. (See pp. 41-42, "American Consular Jurisdiction in the Orient," Hinckley.)

These statutes have been somewhat modified, so far as China is concerned, by the act of June 30, 1906, creating a United States Court for China. That act impliedly removes all jurisdiction and the power of making regulations from the minister to China. It confers this jurisdiction and power upon the judge of the United States Court for China. A copy of the act of June 30, 1906, is attached.

The proposed act to regulate the practice of pharmacy and sale of poisons in the consular districts of the United States in China does not in any way transcend the consular and judicial authority of the United States in China, as provided for in the above-mentioned treaties and statutes. It should be stated in regard to section 13 of the proposed act which protects the act of Congress of February 23, 1887, providing for the execution of the provisions of Article II of the American-Chinese treaty of 1880, that this is necessary to prevent American citizens in the general act of practicing pharmacy from engaging in the opium trade in Chinese waters, as agreed to by the United States and China by Article II of the treaty of 1880.

It may be stated as a general proposition that the Chinese Government has always welcomed the worthy exercise of the judicial functions of the United States which are reserved to this Government under the extraterritoriality provisions of our treaties, and the exercise of such power has always made for better relations between the two countries. The accompanying proposed pharmacy act, which is to apply to Americans resident in China, will serve as a sure indication of the solicitude of this Government to do its bounden duty toward China.

MEMORANDUM III.

The Government of the United States "can, equally with any of the former or present Governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its oflicers appointed to reside therein." (In re Ross, 1891, 140 U. S., 453, 463. See Moore, vol. 5, p. 161, third paragraph.)

DEPARTMENT OF STATE, Washington, December 15, 1914.

Hon. HENRY D. FLOOD,

Chairman Committee on Foreign Affairs,

House of Representatives.

SIR: There is now pending before the House Committee on Foreign Affairs the bill S. 6631, to regulate the practice of pharmacy and the sale of poison in China by Americans residing in the consular districts of the United States in that country. The Department of State is greatly interested in the passage of this bill.

The International Opium Commission which met at Shanghai in 1909 recommended that each Government represented at the meeting should enact certain proposed legislation upon this subject. The International Opium Conference at The Hague subsequently adopted a convention to which the United States is signatory, pledging the signatory powers to the enactment among other laws of just such legislation as is proposed in the bill mentioned.