President authority to act only upon conditions which affect the content or tenor of his instructions, and making the main points of the instructions part of the authorization.

The Act of March 4, 1913, has brought confusion into the practice of the government. It has never achieved its apparent aim, yet it has not been overthrown. Neither branch of the government has pursued a consistent course with reference to it. While the President regarded it, as has been said, "utterly futile," he proceeded to say he would not disregard it entirely, but would use his judgment as to what the circumstances of each occasion required. In the exercise of that judgment he authorized members of his administration to seek legislative authorization; on at least one occasion he signed a message to Congress which appeared to recognize the act as a bar to his independence of action; yet there are enough cases where the President has acted independently to make it clear that when sufficiently determined he can override the provisions of the law, if funds are available to meet the expenses. It is difficult, from a study of the cases, to make a categorical declaration as to factors which influenced his judgment in the several cases. Apparently the most important was whether it would make an unpleasant issue with Congress. Where the conference was to be manifestly diplomatic and political in character the executive has acted with considerable boldness. When Congress has discussed such cases the more able constitutional lawyers in the Senate have admitted that the Act of 1913 probably went beyond the power of Congress. With regard to conferences of less important character, there appears to have been a desire on the part of the executive to avoid making an issue of it. This would partly explain the difference in practice with reference to the issuance and the acceptance of invitations. Both are equally covered in the act. But invitations can more frequently be accepted without attracting undue attention and without the necessity of securing appropriations. Often, too, the United States can be represented abroad by an unofficial observer, who serves to express the point of view of the American Government and to report proceedings and views, thus avoiding, in the case of conferences where question might otherwise be raised, the necessity of Congressional authorization. Issuance of invitations, on the other hand, is a more public act, almost inevitably involves a larger appropriation, and would challenge Congress more openly.

more so.

If the executive has not been perfectly consistent, Congress has been no While upon some occasions it has given only conditional consent, upon others it has failed to protest when the law was disregarded. It has made special appropriations for attendance upon conferences despite the fact that the President had not been authorized to accept the invitation. On some occasions, too, Congress appears to have recognized the initiative of the President by "requesting" him to act, instead of "authorizing" him to do so, reverting to the phraseology common before the Act of 1913.51

"See, for example, Stat. at Large, XLII, 822.

From any point of view the act is unfortunate. It is an interference with the historical balance of power between the executive and the legislative. Without it there was already ample provision for preventing the President from entering upon binding commitments at conferences. If money were required for participation, the executive was bound to seek it of Congress. That body could exercise its unquestioned right to grant or refuse an appropriation. If any formal instrument were signed it would have to go before the Senate for approval before the President could ratify it. If informal engagements were entered upon, there would be need, not infrequently, for legislation to carry into effect contemplated action, and Congress was free, in such cases, to exercise its discretion.

The act has also affected the method of our diplomacy. One of the motives for the informal methods which have become so common is to avoid legislative interference. As executive agreements avoided the necessity of going to the Senate for approval, so "unofficial observers" and "personal representatives of the President" may be sent to conferences and to some of the commissions without Congressional authorization. There are of course other reasons for the use of observers, arising out of the nature of the subject, the character of the conference, or the membership of the group; but when all is said and done, one of the principal motives for informal and unofficial representation is to keep for the executive a free hand as against the legislature.

The Senate and Congress as a whole have been restive in the face of executive agreements which seemed designed to rob the legislative branch of its opportunity to advise and consent to international commitments, and it is not surprising that the executive has been restive under the restrictions imposed by this law, which appears to be legislative trespass on historic executive functions.

EXTRATERRITORIALITY IN CHINA

BY HAROLD SCOTT QUIGLEY

Professor of Political Science, University of Minnesota

1. THE WASHINGTON CONFERENCE

Among the subjects tentatively suggested by the Government of the United States in September, 1921, to the governments invited to participate in a conference on "Limitation of Armament" and on "Pacific and Far Eastern Questions" was that of the application of the principles that might be decided upon in questions relating to China to the territorial and administrative integrity of that state. When the Committee on Pacific and Far Eastern Questions took up the general discussion of matters within its purview, the expressions of high intention toward China on the part of the different interested Powers were so unanimous that it was deemed advisable to draw up immediately a statement of principle embodying these sentiments. At the first meeting of the committee the Chinese delegation had presented a group of statements of principle, of which the first reads: "The Powers engage to respect and observe the territorial integrity and political and administrative independence of the Chinese Republic," and the fifth as follows: "Immediately or as soon as circumstances will permit, existing limitations upon China's political, jurisdictional and administrative freedom of action are to be removed.” 2 The statement drawn up by Mr. Root, accepted in essentials by the committee and adopted by the conference, is a re-phrasing of these Chinese formulas, so worded, to use the words of Mr. Root, as "to follow the terms of the various steps and declarations made in a scattering way by this country and that at various times. . . nothing new' but "rather a résumé drawn to form a united expression on points already covered." The first two clauses as adopted read:

3

It is the firm intention of the Powers attending this conference. (1) To respect the sovereignty, the independence, and the territorial and administrative integrity of China;

(2) To provide the fullest and most unembarrassed opportunity to China to develop and maintain for herself an effective and stable government.*

They subsequently became the first two clauses of the Treaty relating to Principles and Policies concerning China.

1 Conference on the Limitation of Armament (Washington, 1922), p. 10.

2 Same, pp. 866-868.

3 Same, pp. 889-890.

Conference on the Limitation of Armament, p. 148.

Same, p. 1624.

The delegates of the Powers, though some of them had exhibited apprehension regarding the date at which their "respect" should be considered to have taken effect, recognized that, as Mr. Hughes put it: "It would be unfortunate if it were said that the countries represented at the conference professed to respect the integrity of China, and yet at the same time intended to retain their extraterritorial rights." They found difficulty, however, in arriving at an understanding of the factors involved in a decision upon the request of the Chinese delegation, presented by Dr. Wang Chung-hui, that extraterritorial rights be relinquished within a designated period, during which a régime agreed upon, enabling a gradual change to complete abolition, might be applied.' Consequently the resolutions of the subcommittee on extraterritoriality, read to the committee by Senator Lodge, were accepted without debate and subsequently were adopted by the conference as Resolution No. 4.8

The significant features of the resolution are:

(1) The notice taken of the fact that Great Britain in 1902 and the United States and Japan in 1903 had by treaty with China agreed "to give every assistance towards the attainment by the Chinese Government of its expressed desire to reform its judicial system" and "to relinquish exterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant them in so doing."

(2) The provision for an inquiry having within its scope: (a) the "present practice of extraterritorial jurisdiction in China;" (b) the "laws and judicial system and the methods of judicial administration of China."

(3) The provision for a report with findings of fact.

(4) The provision for recommendations to the Powers represented, the scope of which would include suitable means: (a) to improve judicial administration in China; (b) to assist the Chinese Government "to effect such legislation and judicial reforms as would warrant the several Powers in relinquishing, either progressively or otherwise, their respective rights of extraterritoriality."

(5) The requirement that the report should be submitted to the Powers concerned within one year after the first meeting of the commission of inquiry. * Same, p. 938.

7 Same, pp. 932-6.

Same, pp. 1642-1646. The text of the resolution is printed in the Supplement to this JOURNAL, Vol. 16, pp. 76–77.

"In the treaty of Friendship, Amity and Commerce between China and Sweden, of July 2, 1908, occurs the article: "However, as China is now engaged in reforming her judicial system it is hereby agreed that as soon as all other treaty Powers have agreed to relinquish their extraterritorial rights, Sweden will also be prepared to do so." MacMurray, J. V. A., Treaties and Agreements with and concerning China, 1894-1919 (New York, 1921), I, p. 745. In the Treaty of Amity between China and Switzerland, dated June 13, 1918, an attached declaration provides: "When China shall have improved her judicial system, Switzerland shall be ready with the other treaty Powers to give up the right of consular jurisdiction in China." MacMurray's Treaties, II, p. 1430.

(6) The stipulation that each Power, including China, remains free to accept or reject the commission's recommendations; acceptance, however, may not be conditioned upon grant of favor of any sort by China.

(7) The agreement by China to appoint a representative upon the commission and to coöperate with it fully.

It is upon the basis of this document that a consideration of the existing status of the extraterritoriality problem in China must proceed. It is proposed to deal with the two aspects of the commission's problem so far as may be in advance of the investigation, with a view to estimating the justification of relinquishment, progressive or immediate, of the rights of extraterritoriality respectively enjoyed by the Powers. As above noted these two aspects are: (a) The "present practice of extraterritorial jurisdiction in China," and (b) The "laws and the judicial system and the methods of judicial administration of China."

2. THE ISSUE AS TO JURISDICTION

The extraterritorial rights of the Powers in China rest upon no principle of international law, but constitute exceptions to the general principle of sovereign jurisdiction. Such exceptions had been acquiesced in by China prior to the treaty era. She permitted the Arabs, who resided at Canfu (Canton or Haiyen) for the purpose of trade in the ninth and subsequent centuries, to govern themselves under their own laws, and later allowed the Portuguese at Macao to exercise civil jurisdiction over their own countrymen. In Canton also the foreign consuls tried and settled civil cases in which the nationals of their respective countries were defendants.1 In 1689 the Treaty of Nerchinsk between China and Russia stipulated reciprocal extradition of each other's nationals accused of committing crime within the territory of the extraditing country, which amounts to a limited extraterritoriality." Sino-Russian treaties of 1727 and 1768 continued this reciprocal arrangement by which each tried the criminals of its own nationality but had no extraterritorial courts.12

Mr. Jernigan wrote with knowledge that: "The truth is, China wanted as little intercourse as possible with foreigners, and seeing that it was very difficult to keep them out of her territory, she was willing to let them manage their own household affairs, as best suited themselves, when they took up their abode therein." 13 Her attitude regarding the settlement of civil disputes between foreigners was a logical corollary of her acquiescence in the customary Chinese practice of settling civil disputes among them

10 Jernigan, T. R., China in Law and Commerce (N. Y. 1905), p. 194. See Liu Shih-Shun, Extraterritoriality, its Rise and its Decline (New York, 1925), pp. 49–50.

11 Article VI. Cited in Morse, H. B., The Trade and Administration of China, 3rd ed. (Shanghai, 1921), p. 201.

12 Morse, H. B., Trade and Administration, p. 201.

13 Work cited, p. 194.