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question had come up under Article 11 of the Covenant, the League could have done little more than conduct an investigation while hostilities proceeded. It seems to the writer that in case of violation of the law of war in insurrection or civil war, such investigations preferably on the spot, though admittedly difficult and to a considerable extent dependent on coöperation of the de jure authority, might be advisable.

In the present case another article of the Covenant was applicable, that relating to mandates. This gives the Council power to supervise the execution of the mandates, to advise the mandatory of infractions of the mandate, and apparently in extreme cases to remove or transfer the mandate.67 It would seem a fair assumption that as a necessary means to carry out these powers, the Council can send an investigating commission to the spot to see whether the mandate is being observed.68 But the Council's powers are limited to enforcing the mandate. The mandate for Syria holds France responsible for maintaining order. Consequently, measures for suppressing disorder and insurrection would normally be a fulfillment rather than a violation of the mandate.69 However, as the Covenant under which the mandates are given expressly recognizes international law in its preamble, and as the principle of trusteeship for the well-being and development of these people could hardly be carried out by depriving them of rights under that law, it would seem that measures in violation of international law would come under the Council's censure. In fact, the report on the South African conduct in the 1922 Bondelzwart rebellion in its Southwest African mandated territory indicated the Council's conviction that it is bound to prevent barbarities by the mandatories in maintaining order.70 Thus, in a case like the present, in the writer's opinion the Council under Article 22 and the mandate for Syria would be competent to hold an immediate investigation on the spot if necessary.

The practical objection to such investigations, mainly on the ground that they impair the mandatory's prestige and capacity to administer, have been noted in the Mandates Commission," and certainly they should be reserved for complaints of gross violation of the mandate or international law. There have, however, been no suggestions that such investigations were

67 Covenant, Art. 22; Wright, this JOURNAL, Vol. 17, pp. 701-703.

68 Council investigations on the spot in political disputes, as the Mosul boundary and Greco-Bulgarian commissions of 1925, would be precedents. The Permanent Mandates Commission has considered itself incompetent to send a commission on its own authority, though it might recommend such action to the council. Minutes, 3rd meeting, p. 291; 7th meeting, p. 125.

69 Supra, note 21.

70 Report of Permanent Mandates Commission, Minutes, 3rd session, p. 290 et seq., and resolution of the Council, Dec. 13, 1923 (Official Journal, Vol. 5, pp. 340–341). See also debate and resolution of Assembly, Sept. 26, 1923 (Records of Fourth Assembly, Plenary meetings, pp. 89-93).

"Ibid., 3rd meeting, p. 291; 7th meeting, p. 124.

beyond the power of the Council. In fact, such a commission was sent to Iraq to investigate the Mosul boundary question.72

In fact, the Mandates Commission, which was sitting when the bombardment took place, did not suggest such an investigation. Instead it recommended that the Council invite France to submit a written report on the situation by January 15th, set a special meeting of the commission at Rome in February, and informed the French representative that on this occasion the commission was "anxious to know the causes which had given rise to the unfortunate state of affairs and the measures which the mandatory Power had been obliged to take in order to find a remedy." 73 This method of procedure is slow, but experience has shown that it may be effective in reforming the conduct of a mandatory.74

72 Supra, note 68.

73 Permanent Mandates Commission, Minutes, 7th meeting, pp. 16, 132. The Commission sat from Feb. 19 to March 6, 1926.

74 As in the Bondelzwart affair.

AMERICAN EXTRATERRITORIAL JURISDICTION IN CHINA

BY CRAWFORD M. BISHOP

Member of the Bar of the United States Court for China

In 1903 the United States, by treaty with China, agreed to give China every assistance in the reform of her judicial system, and stated that it would also be prepared "to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in so doing."

As a result of the deliberations of the Washington Conference, 1921-1922, a resolution was passed providing for the appointment of a commission to enquire into the subject of the abolition of the extraterritrial jurisdiction enjoyed by the Treaty Powers in China. Appointments to this commission having now been made on behalf of the United States by the President, the question arises as to what is the nature and the extent of the jurisdiction which it is proposed to relinquish.

ORIGIN AND HISTORY OF EXTRATERRITORIALITY

The exercise of judicial authority over American citizens in China and the application of American laws to the determination of their personal and property rights rests upon treaty. The earliest of these, the Treaty of Wang Hiya, signed on July 3, 1844, provided (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 thereto authorized, according to the laws of the United States." This covered the subject of criminal law. Another article (XXV) provides for civil jurisdiction in these terms: "All questions in regard to rights, whether of property or persons, arising between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the authorities of their own Government."

The Honorable Caleb Cushing, the Commissioner of the United States who negotiated this treaty, said respecting it, in a letter of September 29, 1844, to Secretary of State Calhoun, that he had "obtained the concession of absolute and unqualified extraterritoriality." The jurisdiction, it is true, is conferred in terms of generality, but this was done purposely in order, as Cushing says, "to leave to Congress full and complete direction to define, what officers, with 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 treaty of 1844 between the United States and China and the documents accompanying it were submitted by President Tyler to Congress with

his messages of December 10, 1844, January 9 and 22, 1845. In the last of these the President said:

By the 21st and 25th articles of the treaty, citizens of the United States in China are wholly exempted, as well in criminal as in civil matters, from the local jurisdiction of the Chinese Government, and made amenable to the laws and subject to the jurisdiction of the appropriate authorities of the United States alone.1

Legislation by Congress in 1848 as amended in 1860 (now embraced in Revised Statutes Secs. 4083-4130) provided for these matters. These sections are a codification of the laws enacted by Congress to define the judicial authority conferred upon ministers and consuls in conformity with the provisions of the treaties with China and the other countries in which extraterritorial jurisdiction was to be exercised. Section 4086 specifies the body of law to be administered by the Consular Courts and is as follows:

Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries and over all others to the extent that the terms of the treaties respectively justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the statutes of the United States furnish appropriate and sufficient remedies the Ministers in those countries respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies.

In an opinion rendered to Secretary of State Marcy on September 19, 1855, the Hon. Caleb Cushing, then Attorney-General, thus describes the system of law extended to American citizens in China:

1. The Laws of the United States comprehending the Constitution, treaties, Acts of Congress, Equity and Admiralty law, the law of nations, public and private, as administered by the Supreme Court, and Circuit and District Courts of the United States, and, in certain cases, regulations of the Executive Departments.

2. The "Common Law." In this respect, the statute furnishes a code of laws for the great mass of civil or municipal duties, rights and relations of men, such as within the United States are of the resort of the courts of the several States.

The deficiencies in the common law are to be supplied by decrees and regulations of the Minister. In pursuance of this power, Consular Court Regulations for China have been promulgated from time to time, the most important being the General Regulations of 1864.2

1 Richardson, Messages and Papers of the Presidents, Vol. IV, pp. 352, 358.

2 See Hinckley, American Consular Jurisdiction in the Orient, pp. 226–236.

The provisions of the treaty of 1844 were reaffirmed in the treaty of 1858 (Arts. 11, 27 and 28) with some amplification. The treaty of 1880 (Art. IV) contains the latest and most detailed provisions for the exercise of extraterritorial jurisdiction by American Consular Courts.

The extraterritorial treaties and the Acts of Congress of 1848 and 1860 were first construed by the Supreme Court of the United States in 1875 in the case of Dainese v. Hale (91 U. S. 13). This case, which was one in error to the District of Columbia Supreme Court, arose from an attachment issued by order of the United States Consul General in Egypt in 1864. The court, in its opinion, referred to the instructions to consular officers exercising judicial functions, contained in the Consuls Manual issued by the Department of State in 1862, as being "entitled to the highest respect in construing the statutes and treaties upon which their powers depend." This Manual embodied the opinion of Attorney-General Cushing (11 Op. Atty. Gen. 474). The case of Dainese v. Hale, while referring primarily to the extraterritorial jurisdiction in Turkey, is also of authority in certain respects in regard to China.

The second case to come before the United States Supreme Court was In re John M. Ross (140 U. S. 183), decided May 25, 1891. This case arose from a sentence of death pronounced upon the appellant by the Consul General at Kanagawa, Japan, for the crime of murder of which he was convicted in that consular court. The case was brought on appeal from the Circuit Court of the United States in the Northern District of New York (44 Fed. Rep. 185). It was held in this case that the "Constitution of the United States can have no operation in another country," and that "the guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.”

CONSULAR COURTS

This body of law was administered by consuls acting in their judicial capacity and presiding over consular courts. The regulations governing these courts were promulgated by the Ministers, with the approval of the consuls, and transmitted to Congress by the Presidents of the United States. An example of such submission is the message of President Buchanan of December 27, 1858, to Congress "submitting a decree and regulation" for such revision as Congress may deem expedient. Other decrees and regulations were likewise transmitted on December 12, 1856, February 6, 1860, March 22, 1882,5 and January 14, 1889.6 These decrees and regulaRichardson, V, 418.

▲ Id., V, 580.

'Id., VIII, 88.

• Id., VIII, 803.

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