File No. 7655/36. Memorandum from the Chinese Legation. IMPERIAL CHINESE LEGATION, In the case of Douminet [De Menil], an American citizen, who caused the death of Pu Keng Lung, a lama monk, at Weihsi Ting, Yunnan Province, the prisoner was arrested and handed over to the American consul at Chungking, and by the latter transported to Shanghai, where the case was tried by the judge of the American court in November, 1907. The verdict was in favor of the accused, and before the Chinese assessor could pay a protest, the accused was acquitted. Much dissatisfaction was expressed at the verdict, for whether the killing was intentional or accidental, punishment should have been meted out to the prisoner or a fine imposed to be paid to the family of the dead man as compensation. The case was drawn by the Wai-wu-Pu to the attention of the American minister, who expressed his inability to interfere, as it was a matter decided by the judiciary. Now a dispatch from the Wai-wu-Pu to the Chinese minister states that in a communication from the viceroy of Yunnan the relatives of Pu Keng Lung, the deceased, set forth that he was the breadwinner of the family, supporting his parents, wife, and children, and that his untimely death at the hands of the American citizen should receive some sort of satisfaction. It is also set forth that Douminet [De Menil] promised the parents of the deceased to compensate them in any manner they might desire for the killing of their son and to hold himself responsible for the consequences of his act. This promise is on record in his deposition at the examination before the court at Likiang Fu. Now that the American court has acquitted Douminet [De Menil] it seems but fair that the American Government should devise some way by which the relatives of the dead man should receive some sort of satisfaction, or that Douminet [De Menil] should be made to fulfil the promise he made to the relatives of Pu Keng Lung in Yunnan. File No. 7655/36. Memorandum to the Chinese Legation. DEPARTMENT OF STATE, Washington, July 29, 1909. Referring to the memorandum left at the Department of State by the Chinese minister on the 10th ultimo1 concerning the case of De Menil [Douminet], an American citizen, who was charged with the killing of a lama in Yunnan and acquitted by the United States Court for China at Shanghai on the ground that the killing was accidental, it is now pointed out that this case has on several occasions received the considerate attention of the Department of State, and this Government's position in regard to it has been communicated to the Chinese authorities at Shanghai by the American consul general at that place. 1 Dated June 9, 1909. The Department of State, however, can not fail to avail itself of the present opportunity to give a clear statement of the American law governing the case, in order that the Chinese Government may not misunderstand the attitude of the United States. As is already known, De Menil, as the result of the killing of the lama, was tried before the United States Court for China on the charge of manslaughter. After a fair and impartial trial in accordance with the laws of the United States, in the presence of a representative of the Chinese Government, and at which the testimony of the Chinese witnesses was heard, the judge of the court reached the conclusion that the killing was the result of an accident and therefore acquitted the accused. The Chinese Government then protested against the decision of the court and requested that De Menil bet retired. This request, however, could not be granted because the rearrest and retrial of De Menil, after his once having been acquitted, would be contrary to the principles of American law embodied in the Constitution of the United States (Amendments, Article V), which says, "nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb." De Menil having been tried for manslaughter and acquitted, a plea of former jeopardy could at once be successfully interposed if any attempt were made to retry him for the same offence. The Chinese Government suggested also that the court in adjudging the De Menil case should have provided compensation for the family of the lama who was killed, but this Government explained that the case was a criminal prosecution for manslaughter and not a civil suit for damages based upon negligence. The Chinese minister has suggested that "the American Government should devise some way by which the relatives of the dead man should receive some sort of satisfaction" or that De Menil "should be made to fulfill the promise he made to the relatives of Pu Keng Lung in Yunnan," namely, to compensate them in any manner they might desire for the killing of their son, and to hold himself responsible for the consequences of his act. The Department of State, however, regrets its inability to comply with either of these requests. In the first place this Government can not be held responsible in damages to the relatives of the unfortunate lama for the act of a private citizen traveling in China. In the second place there is no way under the laws of the United States whereby this Government can compel a private citizen to fulfill a promise to the subjects of a foreign nation. The only legal remedy which the relatives of Pu Keng Lung appear to have, under American laws, is that which was suggested, in accordance with this department's instructions, to His Excellency Ts'ai Nai Huang, customs tao-t'ai of Shanghai, by the American consul general at Shanghai, under date of April 24 last, namely, a civil suit against De Menil for damages based on negligence. As was stated by the consul general, such a civil suit might be brought if, in the opinion of the family of the deceased, and they are so advised by counsel, death was due to the negligence of the defendant, and if the defendant can be located within the jurisdiction of the United States Court for China, or some other court of competent jurisdiction. The Department of State trusts that this explanation will enable the Chinese Government to understand the position of the United States in regard to the case and to further understand that in prosecuting De Menil criminally for his act, although such prosecution resulted, from the evidence submitted, in his acquittal of the charge, this Government has exhausted its legal remedies against the accused, and for any further redress the aggrieved Chinese subjects must look to a civil suit against De Menil in accordance with the suggestion already made by the Department of State to the Chinese Government. PROTECTION OF CORPORATIONS ORGANIZED UNDER LAWS OF THE UNITED STATES AND OPERATING IN CHINA. CASES OF THE TAI HONG CO. AND THE AMERICAN PRESBYTERIAN MISSIONARY SOCIETY. File No. 14716/2-3. No. 177.] Consul Pontius to the Assistant Secretary of State. AMERICAN CONSULATE GENERAL, Hankow, June 26, 1908. SIR: I have the honor to state that with further reference to my No. 175, dated June 19, 1908, on the subject of the status of the Tai Hong Co., I inclose herewith copy of reply of legation to my dispatch forwarded to it. The legation's instructions will be complied with and the present inclosure is forwarded to the department in the hope that same will prove of assistance should the department wish to instruct this consulate in the matter also. SIR: Your No. 377, of June 13, 1908, on the subject of the status of the Tai Hong Co., has been received. You inclose certified copy of the certificate of incorporation under the laws of the State of Delaware, of this company, and report that you are “informed” that all shares of the company have passed to citizens of other (than American) nationality. You ask five questions, which the legation answers as follows: 1. Can a consular officer file the articles of incorporation of a company if produced by other than a duly accredited representative? You should satisfy yourself that the certificate is presented by the properly authorized agent or attorney of the corporation. 2. Has a duly organized American corporation the right to continue operation as an American concern after the majority of stock has been disposed to other than Americans? This depends upon the charter and by-laws of the corporation and the laws of the State (in this case Delaware) creating the corporation. As a general rule, "the mere transfer of shares between individuals does not affect the complete subjection of the corporation itself to the Government which created it." 3. What kind of documentary proof in this instance is necessary in order to empower a local representative to conduct business in the Tai Hong Co.'s behalf? For instance, I am informed that as Ing Kong is the president of the company, he is fully empowered to act in its behalf; but as he has no written proof that such is the case, I have refused to recognize this contention. The proof should be of such a character as to satisfy you of the regularity of the appointment. 4. Admitting that there are doubts as to this concern being at present a bona fide American corporation, has not this consulate the right to demand documentary proof as to the election of a president and secretary and their rights and authority in the premises? 5. If Ing Kong now holds the shares of the company in his name, has not this consulate a right to insist that some documentary evidence to this effect be shown? As the corporation applies to you for assistance as an American juridical person, it is your duty to satisfy yourself that it is entitled to such protection. This will best appear by an examination of the charter and by-laws, minutes, etc., which you may properly ask to have submitted to your inspection. The facts thus revealed should be reported to the legation if further instruction seems desirable. In cases of this kind something more concrete than mere information is absolutely necessary to enable the legation to reach a decision and the fullest possible statement of facts should be furnished. I am, etc., W. W. ROCKHILL. File No. 14716/2-3. The Acting Secretary of State to Minister Rockhill. No. 507.] DEPARTMENT OF STATE, Washington, October 27, 1908. SIR: With reference to the correspondence between the consulate general at Hankow and the legation, in regard to the Tai Hong Co., and the legation's No. 1636, of June 22, 1908, in this connection to the consulate general at Hankow, there is inclosed herewith a copy of the department's instruction, of to-day's date, to the consulate general at Hankow. It is believed that the substance of this instruction may be of interest to certain of the various consuls in China, and you may, therefore, wish to send copies thereof to those offices where, in your opinion, the correspondence may be of value for future reference and guidance. I am, etc., ROBERT BACON. [Inclosure.] No. 100.] The Secretary of State to Consul-General Martin. DEPARTMENT OF STATE. Washington, October 27, 1908. SIR: With further reference to dispatch No. 177, of June 26, 1908, emanating from your consular office, and relating to the status of the Tai Hong Co., the department notes that the legation in its reply has covered, as fully as possible, the various questions submitted to it by the consulate. It is assumed that a corporation duly organized under American laws is technically regarded, irrespective of the citizenship of its stockholders, as an American corporation, subject, as such, to American jurisdiction, and entitled, therefore, to American protection, in the discretion of this department. This being so, the filing of the article of incorporation in the consulate would seem to be almost as of right, it being understood that such filing indicates nothing except that the corporation is a duly organized American corporation. Consulates should file articles of incorporation of any American company, unless specific reasons appear why this should not be done. At the same 22591°-F R 1909-5 time, a general warning should be given to the representative of each company who presents articles of incorporation for filing, that the department reserves to itself the determination as to whether or not a company, nominally American, in fact represents American beneficial interests to such a substantial degree as to cause the department to interest itself actively in its behalf. It should also be stated that no attempt is made to lay down any definite rule as to the proportion of stock which must be beneficially owned by American citizens, but that the department, in forming any decision in regard to the matter, will take into consideration all the circumstances in each particular case. The practice as suggested in the foregoing should be satisfactory to all bona fide American enterprises, and, in view of our present corporation laws in this country, and the absence of corporation laws especially designed for China, it would seem difficult for the department to take any other position. I am, etc., (For the Secretary of State.) SIR: I have the honor to inclose a copy of a dispatch, with its inclosures received from the consul general at Canton, with reference to his recognition of the American Chinese Presbyterian Missionary Society as entitled to American protection. I have advised Mr. Bergholz to take no action until the department's decision has been received. While the case is somewhat similar to that of the Tai Hong Co. (vide Mr. Bacon to Mr. Rockhill, No. 507, of Oct. 27, 1908), I have thought it best to refer it to the department for decision, at the same time stating that in my opinion the society as it presents itself in China does not seem to represent sufficient American interest to entitle it to our protection. Nor does it seem to fall within the spirit of our treaty provisions with regard to the privileges of American missionary societies. Inasmuch as Mr. Bergholz reports that the agents of the society in China are none of them American citizens, I think, aside from the question of the status of the society itself, that this fact would be sufficient to base our refusal to recognize it as entitled to our protection. It would not be too much to expect of all American missionary societies that they should employ Americans as the principal and responsible agents in China if they wish to secure American protection. This, of course, does not mean that native preachers and Bible vendors may not be employed, but only refers to persons at the head of and in charge of the missionary work and in control of its activities in the localities concerned. I have the honor to request the return to the legation of the articles of incorporation inclosed, as well as the power of attorney. I have, etc., HENRY P. FLETCHER. |