territory is still Chinese territory and that the provisions of our treaties with China granting consular jurisdiction are still applicable therein. But in view of the express relinquishment of jurisdiction by China, I infer that the reservation of sovereignty is merely intended to cut off possible future claims of the lessees that the sovereignty of the territory is permanently vested in them. The intention and effect of these leases appear to me to have been the relinquishment by China, during the term of the leases, and the conferring upon the foreign power in each case of all jurisdiction over the territory. Such relinquishment would seem, also, to involve the loss by the United States of its right to exercise consular jurisdiction in the territories leased. And, as Mr. Conger suggests, as these territories have practically passed from the control of an uncivilized people to civilized, there would seem to be no substantial reason for continuing to exercise such jurisdiction." (Mem. of Mr. Van Dyne, Assistant Solicitor, For. Rel. 1900, 387, 388-389.) In a subsequent dispatch Mr. Conger, while observing that the leased territory in every case was small, reported that judicial procedure according to civilized methods had been established there; that the British Government was preparing to establish consulates at Kiaochow and Talienwan; and that he had instructed Mr. Goodnow, the consul-general at Shanghai, "to inform the United States consuls in China that they have no authority to exercise extraterritorial consular jurisdiction, or to perform ordinary nonjudicial consular acts within the leased territory under their present exequaturs." For. Rel. 1900, 389–390. The ambassadors of the United States to Germany, Great Britain, and Russia were instructed to arrange with the Governments to which they were accredited for the recognition of the competency of the most available consul to exercise ordinary consular functions in the leased territories. Mr. Hay, Sec. of State, to Mr. Conger, min. to China, May 22, 1900, For. Jan. 30, 1903, the Russian Government announced that it would admit (3) EFFECT OF MARTIAL LAW. "I have to acknowledge the receipt of your despatch No. 155, of the 25th of May last, with which you transmit a copy of a law on the state of siege recently passed by the Ottoman Parliament. The law authorizes the Sultan, and, under certain specified circumstances, the military commanders to proclaim a state of siege and prescribes the H. Doc. 551-vol 2-41 manner in which it shall be enforced. Under its provisions Constantinople has been proclaimed to be in a state of siege. No official notice has been given to the foreign missions, and nothing has occurred to present any question for practical decision. "The consul-general in a despatch to you requests your opinion as to how far the law on the state of siege would under the plea of military necessity be allowed to overrule Article IV. of the treaty of 1830, and you refer the question to the Department for decision. "Martial law is generally supposed to supersede all other law, all statutes and all treaties. The military commander who enforces it is not expected to and does not regard the civil law of his own country when it conflicts with what he is pleased to regard as martial law, and which is simply his own will, and it can not be expected that he will pay much greater respect to the treaties of his Government than to its laws. But every American citizen in a foreign land is entitled at all times to the protection accorded to him by our treaty stipulations with that country in which he may be residing. The fact that that country is at war with another foreign power does not affect his status so long as the United States retains its peaceful relations with the two powers. "In view of the above state of facts, should any attempt be made to apply any provision of martial law in conflict with any stipulation of our treaty with the Ottoman Empire to an American citizen residing in Turkey, our representatives will be expected to interpose with the proper authorities in favor of their countrymen, and to demand that all treaty stipulations be strictly observed in the consideration and decision of the case. All cases arising under the law will be at once reported to the Department." Mr. F. W. Seward, Act. Sec. of State, to Mr. Maynard, June 26, 1877, "Your despatch No. 124, of the 14th June last, has been received. You therein report the bombardment of Tamatave by the French on the 10th of that month, and your subsequent notification by the French naval commander that the occupation of the city by the forces of the Republic has put an end to your functions as the consul of the United States accredited to the Hovas Government. It further appears that the town has been proclaimed in a state of siege under the French law, and that the customs and other public business are administered by the French authorities. In this state of things you ask for instructions as to your duties and the disposition to be made of the archives and property in your care. "In reply I have to instruct you that while the temporary suspension of Hovas authority in Tamatave and its replacement by French military control may interrupt your relations with the Hovas Govern ment, it does not annul your relations with the United States Government, which maintains you at the port of Tamatave for the representative protection of any interests of citizens of the United States who may be found there. You will, therefore, remain at Tamatave for the present and continue your charge of the archives and property of the consulate without interruption. You will inform the French authorities that under the circumstances in which you are placed you will in conformity with their order suspend the exercise of representative consular functions in Tamatave towards the Hovas Government awaiting the instructions which your own Government may give you after it has fully considered the situation. You will, however, add that the temporary intermission of your relations with the Madagascan authorities in Tamatave does not exempt you from the moral obligation as a representative of the Government of the United States to use your good offices for the protection of American citizens and property within your jurisdictional limits, and that in case anything should occur calling for your intervention you will feel it your duty to address yourself to whatever authority may be in responsible administrative control of the port." Mr. Frelinghuysen, Sec. of State, to Mr. Whitney, acting U. S. consul at On a report that the German consul at Apia had declared war against Mataafa, an aspirant to the kingship of Samoa who had been in hostile collision with a squad of German marines, the minister of the United States at Berlin was instructed to say that his Government assumed that "the German officials in Samoa would be instructed carefully to refrain from interference with American citizens and property there, since no declaration of martial law could extend German jurisdiction so as to include control of American citizens in Samoa. Such a pretension could not be recognized or conceded by this Government." The German Government replied that when war was declared against Mataafa the commander of the German squadron issued a proclamation by which foreigners residing in Samoa were subjected to martial law; that while "international law would, to a certain extent, not prevent such a measure," yet Prince Bismarck thought that the military authority had gone too far in the present instance; and that the commander had been instructed to withdraw the part of his proclamation relating to foreigners. Mr. Bayard, Sec. of State, to Mr. Pendleton, min. to Germany, tel., Jan. 31, 1889; Count Arco-Valley, German min., to Mr. Bayard, Sec. of State, Feb. 1, 1889: II. Ex. Doc. 119, 50 Cong. 2 sess. 2. 3. Smilar assurances were spontaneously given to Great Britain. (London Times, March 13, 1889.) With regard to the foregoing instances, it may be pointed out that the instruction of Mr. F. W. Seward to Mr. Maynard, in 1877, related to the question of a government's assuming within its own territory, by a proclamation of martial law, jurisdiction over the citizens of a friendly government to whom it had by treaty conceded the privilege of extraterritoriality. In the case of Madagascar in 1883, and of Samoa in 1889, where martial law was proclaimed in the extraterritorial country by a civilized power, the opinions of the Department of State appear to be contradictory. It will be observed that in the well-considered case of John L. Waller, in Madagascar in 1895, the jurisdiction of the French authorities, under their proclamation of martial law, was admitted with regard to the acts with which Waller was charged, which were offences against the laws of war. (See For. Rel. 1895, I. 251; and supra, § 196.) 6. CHINA. (1) ESTABLISHMENT OF EXTRATERRITORIAL PRIVILEGES. § 270. Mr. Cushing, in a dispatch of Sept. 29, 1844, written by him as commissioner to China, discusses the question of extraterritoriality. After explaining the customary origin of consular jurisdiction in Mohammedan countries, he states that China had asserted complete jurisdiction over all persons within the territory and waters of the Empire. When crimes had been committed there by foreigners other than Portuguese, the Government had never failed to assert its jurisdiction to seize the accused if accessible on land, and to demand his surrender if on board of a ship. The claim of surrender had sometimes been successfully resisted, and sometimes acquiesced in. In 1780 a French seaman, who killed a Portuguese seaman in one of the hongs of Canton, was delivered up to the local authorities, by whom he was tried, convicted, and executed. In 1784 the gunner of an English merchant ship, who, in firing a salute, had killed a Chinese, was given up and executed. Other cases had occurred affecting one European government or another. In only one case of surrender had the United States been involved-in 1821 an Italian named Terranova, a seaman on the American ship Emily, who had caused the death of a Chinese boatwoman alongside the vessel at Whampoa, was surrendered and strangled. The Chinese enforced a reluctant submission on the part of the foreign residents in such cases by stopping or threatening to stop all trade. Captain Elliott, of the British navy, however, at an early stage of the controversy between his Government and that of China, refused to give up some English sailors who were charged with homicide. Mr. Cushing, comr. to China, to Mr. Calhoun, Sec. of State, Sept. 29, 1844, By Art. XIII. of the general regulations established under the treaty The treaty concluded by Mr. Cushing in 1844 secured for citizens of the In his report upon his negotiations, Mr. Cushing stated that in his As to the question of establishing mixed tribunals in China, for the trial of cases involving Chinese and foreigners, see reports of Mr. Geo. F. Seward, min. to China, For. Rel. 1879, 220, 221, 229; For. Rel. 1880, 145, 210, 214, 242, 249, 273. (2) UNITED STATES TREATIES. $271. By the treaty between the United States and China, concluded July 3, 1844, it was provided (Art. 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;" and (Art. XXV.) that "all questions in regard to rights, whether of property or person, arising between citizens of the United States in China, shall be subject to the jurisdiction of and regulated by the authorities of their own Government." Mr. Cushing, the negotiator of the treaty, afterwards advised, as Attorney-General, that, under the articles just quoted, citizens of the United States in China enjoyed complete rights of extraterritoriality, and were answerable to no authortiy but that of the United States. Attorney-General Black, prior to the act of June 22, 1860, advised that the judicial authority of the commissioner was restricted to the five ports mentioned in the treaty of 1844. a Cushing, At. Gen., 1855, 7 Op. 495. |