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mentioned in the third category are entitled to be registered for protection in Siam.
5. The wives and widows of any persons who are entitled to be registered under the foregoing categories.
This agreement, also, provided for the holding of a joint inquiry by the British and Siamese authorities should any question arise as to the right of any person to hold a British certificate of registration or as to the validity of the certificate itself.
Agreements having a similar purpose have been concluded with The Netherlands, May 1, 1901; France," February 13, 1904; Denmark,* March 24, 1905; and Italy, 34 April 8, 1905.
Great Britain and France have large numbers of Asiatic subjects and protégés in Siam as has, also, in lesser degree, The Netherlands. These agreements, therefore, removed to a very large extent, though not entirely, what had been a source of irritation to the Siamese Government. No arrangements of this kind, though, have been made with the other treaty Powers, some of which, chiefly Portugal, have considerable numbers in Siam who claim their protection.
The convention of 1904 with France and those of 1905 with Denmark and Italy, to which reference has just been made, modified very considerably the jurisdictional régime established by the earlier treaties. The French convention provided that, in the provinces of Chiengmai, Lakhon, Lampoon, and Nan, all criminal and civil cases involving French ressortissants, including quite clearly French citizens, should be tried in the Siamese International Courts. The consul was given the right to be present at hearings and to make such observations as might seem to him desirable in the interests of justice. In addition, if the defendant was French or a French protégé, the consul might evoke the case for trial before him. In all of the other provinces of Siam, French ressortissants remained, as before, as to all those civil and criminal matters in which they might be concerned as defendants, under the jurisdiction of the consul. It was, however, provided that in civil cases in which the defendant was Siamese the action should be brought in the Siamese Court for Foreign Causes. Appeals from both the International Courts and the Court for Foreign Causes were to be brought to the Siamese Court of Appeal for Bangkok.
The Italian convention of 1905 contained an arrangement similar to that in the French convention just described, the list of provinces to which it was to be applied being identical. The Danish convention of the same year was, also, practically identical, but in addition to the provinces named in the French and Italian conventions, included Phre.
32 British and Foreign State Papers, Vol. 97, p. 961. * Pitkin, Siam's Case for Revision of Obsolete Treaty Obligations, Supp., p. 190. 34 Pitkin, op. cit., Supp., p. 195.
A treaty,35 with protocol, between Siam and France, signed March 23, 1907, still further extended Siamese jurisdiction. By it all French Asiatic subjects and protégés, throughout Siam, registered at French consulates after the date of the treaty, were submitted to the jurisdiction of the ordinary Siamese courts, except those in two provinces, Udorn and Isarn. All such subjects and protégés, registered at French consulates at the date of the treaty, and those in Udorn and Isarn provisionally and without reference to the date of their registration, were submitted to the jurisdiction of the Siamese International Courts subject to the exercise by the consul of the privilege of evocation under the terms of the convention of 1904, but this privilege was to cease as to all matters coming within the scope of codes and laws regularly promulgated and put into force after they had been communicated to the French Legation. The régime of the International Courts was to come to an end and their jurisdiction transferred to the ordinary Siamese Courts after the promulgation and coming into force of the new codes. All judgments on appeal were required to bear the signatures of two European judges and a resort en cassation against the judgments of the Court of Appeal could be made to the Supreme Court or San Dika, which is its Siamese name.
The requirement that judgments of the Court of Appeal, in matters coming from the International Courts, should bear the signatures of two European judges is the first reference in the Siamese treaties to the presence of foreigners as judges or advisers in the Siamese service. No treaty had theretofore required the participation at any stage of the proceedings of foreign advisers or judges, though the Siamese Government had made free use of the services of foreigners in the administration of justice for a number of years 36 both in cases involving Siamese litigants only as well as in those to which foreigners were parties.
35 British and Foreign State Papers, Vol. 100, p. 1028.
36 Mr. R. J. Kirkpatrick, docteur en droit, appears in the Bangkok Directory for 1895 as Legal Adviser to the Ministry of Justice, which had been reorganized in 1892. In the Directory for 1898, Mr. Kirkpatrick is listed as a judge of the Court of Appeal. The Directory for 1899 gives the names of five Europeans as Assistant Legal Advisers and Mr. Kirkpatrick is stated to be a member of the Supreme Court. In 1900 there were nine foreigners employed as Legal Advisers or Assistant Legal Advisers by the Ministry of Justice. It must not be forgotten that in 1892 and for ten years thereafter the Siamese Government had the services of M. Rolin Jaequemyns, a distinguished Belgian jurist, as General Adviser. He was succeeded in 1902 by Professor Edward H. Strobel, then Bemis Professor of International Law in the Harvard Law School, who died in Siam in 1908. Professor Strobel's successor was Professor Jens I. Westengard, also of the Harvard Law School. Professor Westengard served as General Adviser until his retirement in 1915. Mr. Wolcott H. Pitkin was then appointed Adviser in Foreign Affairs and served for two years. Mr. Pitkin was a graduate of the Harvard Law School and had been Attorney General of Porto Rico.
At the present time, there is in the Ministry of Justice, a Judicial Adviser, who sits regularly as a judge of the Supreme Court. There are, also, five Legal Advisers, of whom one sits as a judge of the Supreme Court and three as judges of the Court of Appeal. In The French treaty of 1907 was quickly followed by a new British treaty, in some respects the most important since the treaty of 1855. This treaty, 37 signed March 10, 1909, followed the precedent set in the French treaty of 1907 and divided British subjects in Siam into two classes, those registered at British consulates before the date of the treaty and those registered afterwards. The British treaty, however, went far beyond the French in that it placed all British subjects in Siam, whether of European or Asiatic origin, under the jurisdiction of the Siamese courts. This retrocession of jurisdiction was regulated in an annexed protocol. Jurisdiction over British subjects of whatever origin, throughout Siam registered before the date of the treaty, was transferred to the Siamese International Courts established by the treaty of 1883, the powers of which were extended so as to include the whole of the kingdom. It was provided that these courts should come to an end and their jurisdiction be transferred to the ordinary Siamese courts after the promulgation and coming into force of the Siamese codes, namely, the Penal Code,38 the Civil and Commercial Codes, the Code of Procedure and the Law for Organization of Courts. All other British subjects were remitted to the jurisdiction of the ordinary courts under the conditions defined in the protocol.
This protocol provided for the establishment of International Courts, which it must be remembered are not in any sense mixed tribunals in the Chinese sense but strictly Siamese courts, at such places as might be thought desirable from the standpoint of the good administration of justice. Their jurisdiction was to extend to all civil and commercial matters to which British subjects were parties, and in penal matters to breaches of law of every kind whether committed by British subjects or to their injury. The privilege of evocation was to be exercised in accordance with the terms of the treaty of 1883 but was to cease as to all matters coming within the scope
of codes or laws regularly promulgated as soon as the text of such codes or laws was communicated to the British Legation. Change of venue from the provinces to Bangkok or before the judge who would try the case if it had been transferred to Bangkok, might be demanded by a British subject in the position of defendant or accused and would be granted if the court considered the change desirable. Notice of all such applications was to be given to the British consular officer. Appeals were to be adjudged by the Court of Appeal of Bangkok and notice of all such appeals was to be communicated to the consul who was permitted to give a written opinion to be annexed to the record. Appeals from the judgments of the Court of Appeal on questions of law were to lie to the Supreme or Dika Court. addition, there are fourteen Assistant Legal Advisers. These Legal Advisers and Assistant Legal Advisers are of British, French, and Belgian nationality.
[The writer has failed to state that he is himself a judge of the Supreme Court of Siam. The Editors.)
37 British and Foreign State Papers, Vol. 102, p. 126. 38 This code had already come into force in 1908.
So far as the guarantees just outlined are concerned there is no considerable variation from the provisions of the French treaty and protocol of 1907 but there are other provisions which go far beyond the requirements of those documents. The French protocol required that all judgments on appeal from the International Courts should bear the signatures of two European judges. The British protocol extends this to appeals from the ordinary courts as well. The French protocol contains no reference to the sitting of advisers in either International or ordinary courts of first instance, while the British protocol has the following:
Section 4. In all cases whether in the International Courts or in the ordinary Siamese Courts, in which a British subject is defendant or accused, a European legal adviser shall sit in the Court of First Instance. In cases in which a British born or naturalized subject not of Asiatic descent may be a party, a European adviser shall sit as a judge in the Court of First Instance and when such British subject is defendant or
accused the opinion of the adviser shall prevail. The treaty of 1909 and the annexed protocol mark an advance from the Siamese standpoint in that jurisdiction over all British subjects, regardless of origin, was transferred to Siamese courts. This retrocession of jurisdiction, however, was safeguarded by many restrictions some of which appear for the first time in the history of Siamese treaties. The promulgation of the Siamese codes will not have the effect of doing away with these restrictions for, with the exception of the privilege of evocation which terminates when the codes come into force and the cessation at that time of the jurisdiction of the International Courts, they continue into the ordinary Siamese courts in all cases in which British subjects are involved.
Except, therefore, as to evocation, the exercise of which comes to an end when the codes are put into force, all the other restrictions upon the surrender of jurisdiction may continue forever unless they are modified or ended through the somewhat uncertain processes of diplomatic negotiation, for the treaty does not contain any provision permitting a complete denunciation. Neither the reconstruction of Siamese law nor the completion of the reorganization of the judicial system and the development of a sufficiently large corps of Siamese judges with training and experience enabling them to satisfy reasonable European standards of judicial performance, will of themselves result in freeing Siam from the restrictions contained in the treaty of 1909.
The effect of the treaty of 1909 just alluded to was recognized to a limited extent by the British plenipotentiary by whom the treaty was signed, for, in a letter 39 bearing the same date as the treaty and addressed to the Siamese Minister for Foreign Affairs, he said:
With reference to the guarantees contained in the first paragraph of Article 4 of the Jurisdiction Protocol, I have the honour to state that His Majesty's Government will be prepared in due course to consider the question of a modification of or a release from this guarantee when it shall be no longer needed. His Majesty's Government are also willing that, in negotiations in connection with such a modification or release, the matter shall be treated upon its merits alone and not as a consideration for which some other return should be expected.
39 Pitkin, op. cit., Supp., p. 223.
However, the conditions which must be satisfied by the Siamese Government, before it can be regarded that the guarantees in the first paragraph of Article 4, which are by no means all the guarantees contained in the treaty and protocol, are no longer needed, are not set out and the question of securing modifications of the system or its abolition remains, as before, the subject of diplomatic negotiation.
A treaty with Denmark, signed March 15, 1913, extended the system of the British treaty and protocol of 1909 to Danish subjects, but the guarantees were given only through a most favored nation clause and not directly.
Siam's entry into the war on July 22, 1917, on the side of the Allied and Associated Powers, had the effect of terminating the consular jurisdiction theretofore exercised by Germany and Austria-Hungary. The Treaty of Versailles of June 28, 1919, contains, in Article 135, a recognition by Germany of the termination of all treaties, conventions, and agreements with Siam, including all rights of exterritorial jurisdiction, as from July 22, 1917. The same provision is contained in the treaty of peace with Austria of September 10, 1919, in Article 110, and in the treaty of peace with Hungary of June 4, 1920, in Article 94.
The latest treaty « concluded by Siam is that with the United States, signed at Washington on December 16, 1920, the ratifications of which were exchanged in Bangkok September 1, 1921. Jurisdiction is dealt with in an annexed protocol, which provides that consular jurisdiction as theretofore exercised by the American consul, except as to the trial of evoked cases, ceases and determines upon the exchange of ratifications, and that thereafter all citizens of the United States and persons, corporations, companies and associations entitled to its protection in Siam are to be subject to the jurisdiction of the Siamese courts. However, until the promulgation and putting into force of all the Siamese codes, namely, the Penal Code, the Civil and Commercial Codes, the Codes of Procedure and the Law for Organization of Courts, and for a period of five years thereafter, but no longer, the United States, through its diplomatic and consular officials in Siam, whenever in its discretion it deems it proper so to do in the interests of justice, may evoke any case pending in any Siamese court, except the Supreme or Dika Court, in which an American citizen or a person, corporation, company or association entitled to its protection, is defendant or accused. All evoked cases are to be disposed of by the diplomatic or consular official of the United States in accordance with the laws of the United States properly ap
40 British and Foreign State Papers, Vol. 107, p. 750. 4 16 American Journal International Law, No. 1, Jan., 1922, Official Documents, p. 25.