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plicable, except that as to all matters coming within the scope of codes or laws regularly promulgated and in force, the texts of which have been communicated to the American Legation, the rights and liabilities of the parties are to be determined by Siamese law. Appeals are to be judged by the Court of Appeal at Bangkok and an appeal on a question of law from the Court of Appeal lies to the Supreme or Dika Court. In cases arising in the provinces to which Americans are parties as defendants or accused, a change of venue may be had, should the court consider such change desirable, and the trial may then take place either at Bangkok or before the judge in whose court the case would have been tried at Bangkok.
It will be seen that the United States has not seen fit to adopt the system of advisers as established in the British treaty of 1909. Instead it has preferred to rely upon evocation for a limited period as the sole guarantee of satisfactory action by the Siamese courts, though there is nothing in the protocol to prevent the Siamese Government from providing advisers to sit in American cases whenever they may deem it desirable to do so. The extension of evocation to the Court of Appeal is, however, another novelty in the already too confused course of development of the Siamese treaties, but its effect in further confounding the Siamese courts has been more than overcome through the provision limiting the duration of the guarantee. For the first time since 1855, when the system of consular jurisdiction began, & Western nation has bound itself to submit, after the lapse of a definite time, all those entitled to look to it for protection to the courts of Siam without guarantees, except those involved in arrangements for appeal and change of venue.
SUMMARY At the present time, full consular jurisdiction exists as to the subjects and nationals of Portugal, The Netherlands, Sweden, Norway, Belgium, Spain, Japan, and Russia.
Italian nationals and subjects in five of the northern provinces are under the jurisdiction of the International Courts, while in the rest of Siam full consular jurisdiction prevails.
French citizens and French subjects of non-Asiatic origin, except in five northern provinces, where they are subject to the jurisdiction of the International Courts, are still withdrawn from Siamese jurisdiction and full consular jurisdiction in the remainder of the country exists as to them. French Asiatic subjects and French protégés are, however, under Siamese jurisdiction. Those registered at French consulates before March 23, 1907, are subject to the jurisdiction of the International Courts. Those registered after that date are under the jurisdiction of the ordinary courts. As to the former group, the French consul has the privilege of evocation and judgments in the Court of Appeal must bear the signatures of two European judges.
« At the present time, there is, however, no Russian consular court in Siam.
British subjects of whatever origin, registered at British consulates before March 10, 1909, are under the jurisdiction of the International Courts, and those registered after that date, under the jurisdiction of the ordinary courts. As to those subject to the jurisdiction of the International Courts, the consul has the privilege of evocation. In both courts, whenever a British subject is defendant or accused, a European legal adviser sits in the court of first instance. If British born or naturalized subjects of non-Asiatic descent are parties, the adviser sits as a judge, and if they are defendants or accused, his opinion prevails. Appeals from either the ordinary courts or the International Courts must bear the signatures of two European judges. The jurisdiction of the International Courts extends also, to cases involving breaches of law not merely by British subjects but to their injury as well.
The jurisdiction of the International Courts will come to an end upon the promulgation and putting into force of all the codes now in preparation. When this happens, the privilege of evocation associated with those courts ceases.
Danish subjects are under a régime substantially identical with that for British subjects but the guarantees are secured only by a most favored nation clause. Those registered at Danish consulates before March 15, 1913, are subject to the International Courts and those registered subsequently to the ordinary courts.
The British, French, Italian, and Danish consuls have the right to be present 43 at trials in International Courts of first instance when their nationals, subjects, or protégés, respectively, are parties, and to make observations in the interest of justice, and when appeals are taken, the British, French, and Danish consuls have the right to file written opinions to be annexed to the record.
Under arrangements with Italy, The Netherlands, Denmark, France, and Great Britain, the categories of persons entitled to enjoy consular jurisdiction or special privileges in Siamese courts have been strictly defined.
Citizens of the United States and others entitled to its protection are submitted to the Siamese courts, without distinction between International and ordinary courts. For a period ending five years after the promulgation and coming into force of all the codes, the United States may evoke, from any court except the Supreme Court, any case to which Americans and others entitled to its protection are parties as defendants or accused. In the trial of evoked cases, the laws of the United States will be applied except as to matters covered by Siamese codes and laws actually promulgated and in force and duly communicated to the American Legation, in which cases the rights and liabilities of the parties will be determined by Siamese law.
Nationals of the former German and Austro-Hungarian Empires, except in those cases in which they have become either French, Italian, or Danish, have now no treaty rights or privileges whatever. They would, therefore,
43 As the courts are open in Siam, there is no significance to be attached to this privilege. be subject to the full jurisdiction of the Siamese courts just as are the nationals and subjects of other countries which have never had treaty rights in Siam.44
* Cuba, which has no treaty relations with Siam, employs the good offices of the United States, under an arrangement between the United States and Siam made in 1902. At that time the United States had exterritorial jurisdiction, but Siam, while willing to accept the good offices of the United States with regard to the protection of Cuban interests, was not desirous to extend exterritoriality to Cuban nationals. Secretary Hay, in a dispatch to the American Minister in Bangkok, dated December 18, 1902, accepted this position and stated that the United States "does not regard the exercise of good offices by the United States representatives as involving a claim for Cuban citizens of the extraterritorial rights secured to United States citizens by treaty."
Prior to the War, Germany extended its good offices under similar arrangements to the citizens and subjects of Switzerland and Turkey. Swiss interests are now looked after by the United States.
Subjects of the Kingdom of the Serbs, Croats and Slovenes and citizens of Czecho-Slovakia are entitled to the good offices of France but are not privileged to claim exterritoriality.
THE CLAIMS AGREEMENT WITH GERMANY
The agreement between the United States and Germany providing for the determination of the amount of American claims against that State, signed at Berlin August 10, 1922, is not without significance. The mode of perfecting the contractual relationship between the parties, the choice of an umpire, and the function of the tribunal established thereunder, will obviously attract special attention.
The arrangement takes its place among the so-called executive agreements of the United States; it does not purport to be a treaty. The compact provides for a mixed commission (comprising a commissioner to be appointed by each party, and an umpire, to decide upon cases where the commissioners may disagree), to determine the amount to be paid by Germany in satisfaction of the financial obligations of that State under the treaty with the United States of August 25, 1921, securing to the United States and its nationals rights specified under the Resolution of the Congress approved July 2, 1921, and embracing rights under the Treaty of Versailles.?
The right of the Executive, incidental to his management of the foreign relations of the United States, to adjust international controversies involving the ascertaining of the amount of pecuniary claims against a foreign State, and by recourse to arbitral procedure, is not to be questioned. This is believed to be true regardless of the will of the individual claimant (when a private one), and irrespective of the public or private aspect of the particular claim, and for most purposes, without reference to the causes giving rise to complaint. The right of the President is thus not sharply defined according to whether the particular claim arose as an incident of war, or whether the government rather than a national happens to be the aggrieved party, or
1 The text of the agreement is printed in the Supplement hereto, page 171.
? The Commission is to pass upon the following categories of claims more particularly defined in the treaty of August 25, 1921, and in the Treaty of Versailles:
(a) Claims of American citizens, arising since July 31, 1914, in respect of damage to, or seizure of, their property, rights and interests, including any company or association in which they are interested, within German territory as it existed on August 1, 1914;
(b) Other claims for loss or damage to which the United States or its nationals have been subjected with respect to injuries to persons, or to property, rights and interests, including any company or association in which American nationals are interested, since July 31, 1914, as a consequence of the war;
(c) Debts owing to American citizens by the German Government or by German nationals.
: Doubtless in the adjustment of certain classes of essentially public claims, and notably of those hardly capable of exact measurement or appraisal in pecuniary terms, and of large whether a national whose cause has been espoused by his government is satisfied with the procedure or result.
The new agreement with Germany, having no political aspect whatever, is far from manifesting the full extent of the agreement-making power possessed by the President. As compared with the protocol signed at Washington August 12, 1898, fixing the basis of conditions for peace with Spain, or with the arrangement of September 7, 1901, establishing the burdens to be borne by China in consequence of the "Boxer" troubles of the previous year, or with the executive action in formulating in conjunction with the Associated Powers the basis of an arrangement productive of the armistice concluded with Germany in 1918, the recent agreement appears to be a very moderate exercise of Presidential power. While it entails the ascertaining of the limit of an aggregate sum of vast proportions, the amount involved hardly affects the theory of procedure or betokens recourse to a fresh principle.
Despite arguments to the contrary, it may be gravely doubted whether the Trading with the Enemy Act of October 6, 1917,4 purported to deprive the Executive of any right possessed by him to conclude an agreement such as that of August tenth. That Act did declare that after the end of the ar, any claim of an enemy or of an ally of an enemy to any money or other property received and held by the Alien Property Custodian or deposited in the United States Treasury, should be settled as Congress might direct. This was far from an assertion of control over American claims against Germany or its nationals, and still less over the mode of ascertaining their extent. It should be observed that it is the determination of the amount, rather than of the basis or mode of satisfaction of those claims, which is made the function of the commission established under the convention.
It would be difficult to maintain that any existing contractual arrangement with Germany tied the hands of the President, forbidding an executive agreement such as that which he has concluded. The treaty with Germany of August 25, 1921,6 conferring upon the United States comprehensive and specified privileges under the Treaty of Versailles of June 28, 1919, made careful provision that the United States was not to be bound to participate in any commission established under that treaty or any agreement supplemental thereto. Moreover, it did not prescribe that should the United States and Germany elect to agree to have recourse to a mixed arbitral tribunal such as that outlined in Article 304 of the Treaty of Versailles, the compact should assume the form of a treaty, or that any mixed commission political concern to the nation, the President would and perhaps should condition the consent of the United States upon the approval of the Senate, and accordingly incorporate the agreement in a treaty.
* 40 Stat. 411; also SUPPLEMENT to this JOURNAL, Vol. 12 (1918), p. 27. 5 Section 12. 6 U. S. Treaty Series, No. 658; also SUPPLEMENT to this JOURNAL, Jan. 1922 (Vol. 16),