certain Latin countries have shown reluctance to abide by these principles. A mandate was issued in 1909 in which the claims of non-treaty foreigners to extraterritorial privileges were denied.33 However, as Jernigan states: "The spirit and letter of the treaties and regulations mean, that all who reside in the settlement at [Shanghai], whether foreigners or natives, shall be exempt from the interference of the Chinese Government, that over a foreigner that government shall have no control whatever, and that over a native its control shall be primarily exercised under the supervision of a foreign official." 34 From which it would follow necessarily that within a settlement or concession non-treaty foreigners when defendants would be under the jurisdiction of the mixed court.

7. CONSULAR AND OTHER COURTS

In consonance with their treaty authorization, the various foreign states have provided for the conduct of judicial functions by their consuls, creating a "multiplicity of courts" which "may be fairly said to constitute the most cumbersome system of judicature known to exist in any considerable commercial center in the world."" And, incidentally, overlooking, for the sake of economy, the well-established principle of separation of powers; not only that, but constituting the already over-burdened consul advocate in mixed cases in Chinese courts. In Shanghai there still exist eleven foreign courts, and in addition the "Mixed Court." Each court applies the law of its own state and prescribes the penalties which that state has determined to be proper. Japan has the largest number of consular courts in China, 44; Great Britain has 25, the United States 18, and France 16. The total num

ber of consular courts in China is 82.36

In addition to the consular courts, there have been established two courts of a strictly judicial character, the British "Supreme Court for China," set up in 1904, and the "United States Court for China," established in 1906. The former has exclusive jurisdiction within the Shanghai consular district and concurrent jurisdiction with the British consular courts in other districts. It may order the transfer of cases to itself from such courts. Appeals lie to it in all criminal matters and in civil matters involving the sum of twentyfive dollars or its equivalent. The United States court has exclusive jurisdiction in criminal cases except "where the punishment of the offense charged cannot exceed by law one hundred dollars fine or sixty days' imprisonment,

Germans. The total population in China of the states which in 1918 did not possess extraterritorial rights was, in 1923, 443. Of these 400 were Swiss, who secured the rights in 1918. China Year Book, 1925, p. 30.

33 Koo, Status of Aliens, pp. 205-211; China Year Book, 1921-2, pp. 621-2.

"China in Law and Commerce, pp. 200-201.

25 Consul Bailey to Secretary Seward, Sept. 15, 1879, Foreign Relations, 1879, p. 229. "Portugal has 8, Belgium 6, Italy 5, Denmark 1, The Netherlands 1, Spain 1, Switzerland 1. 37 Koo, V. K. W., Status of Aliens, pp. 181-2.

or both," and in civil suits except where "the sum or value of the property involved in the controversy does not exceed five hundred dollars United States money," in which cases, criminal and civil respectively, the consular courts continue to exercise jurisdiction. Appeals may be taken to the United States Court from the consular courts.38 Appeals in important cases may be taken from the consular courts of all countries to the courts designated by the law of the respective states. Appeals also may be taken from the British and the American Courts for China, in the former case to the Privy Council, if that body permits, in the latter to the Circuit Court of Appeals of the Ninth Circuit.

8. THE LAW APPLIED

The law applied in the foreign courts is for the most part that portion of the law of the country to which the court belongs which its own authority has declared to be applicable. In the case of disputes involving real property, the fundamental principle of all systems of jurisprudence, that of lex situs, has, however, been applied. As Justice Bourne pointed out, this action by British courts is indeed an application of a principle of British law, and it is to be noted that in many instances, outside the law of immovable property, the application of foreign law amounts simply to pointing out the obligations of foreigners under Chinese law and to prescribing penalties for breaking it. Extraterritoriality has not authorized foreigners to infringe Chinese laws, but has provided the foreign method of dealing with such infringements where they are regarded as of a type which would be dealt with in foreign courts. Professor Willoughby lists four sources of the law of American courts in China: (1) acts of Congress, (2) common law, (3) special decrees and regulations, and (4) Chinese law. 39 Nevertheless an examination of the cases tried in the United States Court for China reveals slight application of Chinese law beyond the law affecting immovables.40

9. MIXED COURTS

Although the "mixed courts" have been in theory Chinese courts, the degree of foreign control over them renders it logical to deal with them as a part of the extraterritorial régime. The title given them is the recognition of a development in the status of the foreign assessor by which his treaty rights to attend the court, to "watch the proceedings in the interests of justice," to "examine and to cross-examine witnesses," and "to protest against [the proceedings] in detail," have been transformed into the direction of judgments. It has not been customary for Chinese assessors to act

* Act of June 30, 1906, in Hinckley, Frank E., American Consular Jurisdiction in the Orient (Washington, 1906), pp. 219–223.

39

** Willoughby, W. W., Foreign Rights and Interests in China (Baltimore, 1920), pp. 44-51.

** Lobingier, C. S., Extraterritorial Cases (Manila, 1920).

under the clauses granting them the same status in foreign courts, though if application is made for leave for a Chinese observer to sit, permission usually is granted.

Statements vary as to the number of mixed courts in China, but there is good authority for stating that they have existed at Shanghai, Amoy and Hankow. In other places the treaty provisions have been followed more exactly. For example, at Tientsin a Chinese accused by a British citizen would be tried before a Chinese magistrate in the presence of a foreign

assessor.

In Shanghai the mixed court has had a unique development which brought it gradually under British, later under joint foreign control, even in the trial of purely Chinese cases. Many things happened during the T'ai P'íng Rebellion (1851-1865). The foreign municipality at Shanghai was established, the foreign customs inspectorate was created, and the mixed court was set up in Shanghai. Subsequently these foreign acts received the compliance of the Chinese Government. Respecting the mixed court, the latter indicated its acquiescence by appointing a deputy of the local magistrate.41 At first he sat alone for the trial of purely native cases, but "in the lapse of time, it has come to pass that no case is now heard by the [Chinese judge] alone." 42 In the years prior to the World War, the British assessor served three days a week, the American two and the German one. This process of change was completed in 1911, again during a period of revolution, when the municipality assumed the power to appoint the Chinese magistrate, which it continues to usurp to this day, declining to return the court to Chinese control until a number of conditions, amounting to the retention by the municipality of a very considerable degree of authority, are accepted. 43 The jurisdiction of the Shanghai Mixed Court is wide; it

is in fact the police court or court of summary jurisdiction for all offences committed by Chinese or non-treaty-power foreigners within the area policed by the police of the international settlement. It is also what would be called in the English system an "assize" court which deals with the more serious cases of crime. On the civil side it deals also with all civil suits brought by foreigners against Chinese and also with all civil suits between Chinese in Shanghai in which the defendant is a resident of the settlement. . . . The law administered by the court

41 In August, 1925, the Chinese Minister of Justice declared that the Shanghai Mixed Court had no legal foundation. Peking Leader, Aug. 20, 1925, p. 1.

42 Morse, International Relations, II, p. 134. He says further: "The consular assessor is a party to the judgment in every case-in police cases because of the interest of the foreign community, and in suits between Chinese because the Chinese official, with his traditional methods of enforcing judgments, must not be admitted to an unfettered jurisdiction within the 'area reserved for foreign trade and residence."" See also Couling, S., Encycl. Sin. (Shanghai, 1917), p. 378. Mayers, Treaties, etc., gives the rules for the mixed court, as revised in 1869, on pp. 236-7. Barton, Sydney, "The Shanghai Mixed Court," in Chinese Social and Political Science Review, Vol. V, pp. 31–41.

43 Willoughby, Foreign Rights and Interests, pp. 62-4.

may be briefly described as the law of China in so far as it is ascertained or ascertainable, administered subject to the customs and to the procedure which have grown up in the past.44

Of the value of the Shanghai Mixed Court, Mr. Sydney Barton, British Consul-General at Shanghai, has written:

Now, whatever the shortcomings of the Mixed Court may be, and there are many, the fact remains that it has functioned all these years and still functions today, as the indispensable court of justice to which seven-tenths of the ever-increasing population of Shanghai is amenable, and in the course of these years it has afforded a concrete example of the application of Western ideas of civil and criminal procedure to the conditions prevailing in China.45

A different emphasis appears in the following statement by Gustavus Ohlinger, LL.B., Michigan, who was born in China and practiced law in Shanghai from 1903 to 1905:

Whether from indifference, or because of a tacit understanding that their presence was not required, Chinese officials have seldom, if ever, attended the proceedings of foreign tribunals when the interests of their countrymen were involved in suits against foreigners. But foreign representatives have always asserted and exercised the right of attending the trial of cases against Chinese when the interests of their nationals were involved. This has led to one of the gravest abuses connected with foreign intercourse in China. Little by little these representatives have arrogated to themselves the right to sit in judgment on mixed cases, and by threats and intimidation to bring the Chinese magistrate who, theoretically, has the sole decision, to the view of the controversy that they favor. Justice under such circumstances is impossible, for to the weakness and native dishonesty of the magistrate is added the aggressive partiality of the foreign representative, who, in the majority of cases does not profess to be a judge at all, but an active advocate on the bench of the cause of his nationals."

Hinckley's treatment of the general question of mixed versus truly Chinese courts indicates that because of grave difficulties, amounting in practice to impossibility, in obtaining judgments against Chinese debtors, "the consul was almost unavoidably obliged to undertake to prescribe to the Chinese magistrate what judgment to pronounce." 47

10. CRITICISM OF EXTRATERRITORIALITY

The examination of "the present practice of extraterritorial jurisdiction" involves a consideration of the criticisms which have been directed against it.

"Barton, Sydney, article cited, pp. 36, 37.

"Same, pp. 38-39.

"Extraterritorial Jurisdiction in China," 4 Mich. Law Rev., pp. 345-6.

47 Hinckley, F. E., American Consular Jurisdiction in the Orient, pp. 159–160. Mr. Hinckley appears not to take note of the differentiation in procedure pointed out by Padoux and previously dealt with in this article.

No one, Chinese or foreign, has regarded it as other than a makeshift, a choice of evils.48

The principal objections to extraterritoriality in China may be said to be: (1) That it constitutes an infringement of sovereignty and is inconsistent with the legal principle of the equality of states.

(2) That it places Chinese litigants at a disadvantage because: (a) the variety of foreign laws and legal arrangements is confusing and conducive to distrust; (b) consular courts are centered in the cities and are practically inaccessible for the trial of cases originating inland,-appeals may lie thousands of miles away in a foreign state; (c) litigants are often ignorant of the language of the court; (d) the penalties imposed by Chinese law are the more

severe.

(3) That it interferes with the local courts: (a) by taking jurisdiction over resident Chinese born or naturalized abroad, and thus protecting them in illegalities for which their neighbors are penalized by the Chinese courts; (b) by taking jurisdiction over and giving protection to Chinese persons or firms fictitiously registered under foreign names, thus affording the protégés a decided advantage over their unregistered competitors.

(4) That it is slow and expensive: (a) it may involve application to several different courts; (b) counter-claims are not permissible, consequently a separate suit must be instituted to accomplish the purpose they serve.

(5) That the foreign consuls are incompetent by training to act as judges. (6) That the foreign consuls exhibit prejudice: (a) in their judgments, (b) in their association with Chinese courts.

(7) That it impedes the development of China's foreign trade since that country considers it unwise to permit foreigners to go in considerable numbers into the interior so long as they continue to possess the right.

Of much significance is the frequent note of nationalism, the assertion of the sacred right of territorial sovereignty, which the Chinese recognize as unanswerable in itself. It is no longer true that the practical problems alone give them concern. Nor would it be wise to overlook the appeal to sentiment, which can be made as powerful an agency of revolt in the East as it has been in the West. It is by no means true, however, that the argument against extraterritoriality is mainly one of sentiment. Rather is it a

48 Authoritative statements of the defects in extraterritoriality in China are plentiful. Among them may be suggested: Hart, Sir Robert, "Proposals for the better Regulation of Commercial Relations," found as Appendix D in Morse, International Relations, II, pp. 456-461; Willoughby, W. W., Foreign Rights and Interests, pp. 67-87; Willoughby, W. W., China at the Conference (Baltimore, 1922), pp. 114–120; A. Nachbaur, Ed., L'Exterritorialité en Chine (Peking, 1925), passim (also presents an argument by G. Padoux favorable to extraterritoriality); Tan, S. H. and others, "Exterritoriality in China," reprinted from Chinese Students' Monthly, Sept., 1925; Tyau, M. T. Z., "Exterritoriality in China and the Question of its Abolition," British Year Book of International Law, 1921-23, pp. 133–149; statement of "Questions for Readjustment submitted by China to the Peace Conference," in China Year Book, 1921-2, pp. 726-9.