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3d. The report of the committee. 4th. The protocol of the conference in regard to the special matter. 5th. The joint note to the Tsung-li Yamên.
As the questions involved have been dealt with in these papers as briefly as possible looking to their importance, I shall not attempt to renew them here.
In asking for your instructions, it is appropriate, however, that I should call your attention to the fact that the main proposition advanced in my memoranda, and accepted by the conference, is that mixed cases, civil and criminal, in which foreigners and Chinese are concerned, ought to be heard and determined in the proper court of the defendant, and in accordance with the laws of his country.
In taking up this position I have adhered to the views declared by our government with more or less precision in various legislative and executive acts.
I am clearly of opinion that those views are right, and that we should adhere to them for the future.
I am very anxious that the subject shall be carefully considered, and to receive instructions which will enable me to proceed as may be necessary to set the question at rest with the government here and in our own service.
Your approval of the main position, and your authority to proceed in concert with my colleagues as proposed in the report of the committee, will be sufficient for all immediate purposes. I have, &c.,
GEORGE F. SEWARD.
[Inclosure 1 with No. 505.)
In considering what may be done to secure a more perfect administration of justice in cases in which Chinese are accused by onr 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.
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 publio 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 “lelivered 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 pnt 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 the laws of the Empire are, nevertheless, supreine, and that foreigners are as much bound to respect them as patives.
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 u:: The father may, it is said, take the life, even, of a worthless or depraved son. And having such authority a corresponding respousibility is sought to be imposed upon him. He n'ay 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 tbat 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 conforın 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 niay be 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 onr 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 subuit for the improvement of the native courts will be 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.
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 redres 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 bearing and effects of the stipulations which I have quoted, but Mr. Cushing 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 ciril right.”
This declaration is repeated by him in a dispatch dated September 29, 1814, 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 rigiilly adhered to by him in his opinion as Aitorney-General upon the act giving judicial authority to our officers in this empire, dated September 19, 1855. Mr. Cushing 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 decid · 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 hiin 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, ciril and criminal, of the authorities of the United States."
The views expressed by Mr. Cushing 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 constitutell, were epacted, 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 oiril rights of Anjericans in China.
It is not to be forgotten or overlooked in this connection that, wbile the earlier act was passed in 1848 and the later act in 1860, the opinion of Mr. Cushing 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 mired 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 further 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, 1869, 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), ciril or criminal, othericise than in the consular courts of the United States. In cases, houerer, when a Chinese subject may be plaintiff, we have no objection to the presence of an officer of that gorernment 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 adbered 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 bebalf, 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 tu the legations in October, 1868. The rules, as so communicated and as accepted by England and the Uuited States, are printed in Mr. Mayer's book, “Treaties with China, & c." (page 2:22). I quote from them as follows:
1. "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. * * *
2. "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 intendant of circuit to deal with the graver cases brought to my notice by our people. A notable instance was the snit 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 uaderstood 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