Before the passage of the act of 1848, the minister of the United States was instructed, in cases of aggravated crimes by citizens of the United States, to send the accused to the United States for trial.a In a civil controversy between a Chinese and an American, the authorities of the two Governments are to have concerted action. Controversies occurring in China between citizens of the United States and subjects of any other (Christian) government, are to be regulated by the treaties existing between the United States and such governments, respectively. Cushing, At. Gen., Sept. 19, 1855, 7 Op. 495. Although not required by the treaty with China, the United States, in 1877, gave a general expression of approval to "the recommendation of the presence of consular officers of their own nationality in the criminal trial of Chinese where the sufferer is a foreigner, and of allowing a Chinese officer to be present at the trial of foreigners where a Chinese is the sufferer." Mr. Fish, Sec. of State, to Mr. Seward, min. to China, Feb. 14, 1877, MS. "I have received your Nos. 9 and 15, of October 8 and 16, 1885, relative to the suit of Lo Chin Lu for damages alleged to have been sustained by the sinking of his charcoal boat which collided with a United States vessel the Annie. "So far as concerns the conflicting interpretation of the treaty of 1858, on the subject of the deposit of court fees, as set forth by yourself, the Department concurs with the conclusions reached in your despatch of October 16th last. "As regards the conflict between the treaty of 1858 and that of 1880, there can be no question that the latter, being more recent, is to prevail. If there be a question between either treaty and subsequent Chinese legislation, the Department's opinion is that, internationally, such legislation cannot affect treaty obligations. I therefore affirm your suggestion that in cases in which an American is sued by a Chinese subject, the United States consul shall invite the proper official of the plaintiff's nationality to sit with him at the hearing to watch the proceedings, to present and examine and cross-examine witnesses, and to protest, if he pleases, in detail.'" Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, Dec. 12, 1885, MS. "The prohibition of Art. II. of the treaty of 1880 not only covers the importation, transportation, purchase, or sale of opium by Amer a Mr. Buchanan, Sec. of State, to Mr. A. II. Everett, min. to China, April 15, 1845, MS. Inst. China, I. 27. ican citizens in China, but extends also to vessels owned by such citizens, whether employed by themselves or by others in the opium trade. . . . The enforcement of the prohibition, as to American citizens in China, is expressly dependent upon appropriate legislation' on the part of the United States. It is only such legislation that consuls of the United States in China can enforce judicially. In the absence of such legislation, it is, to say the least, doubtful whether a consul could lawfully interfere to prevent an American citizen from doing an act not in itself contrary to international law or the domestic law of China. If, however, the contemplated employment of the American-owned premises by a British subject be opposed by China, and the lease sought to be prevented by the authorities of the latter, the consul would be justified in withholding his approval from the sub-lease." Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, May 14, 1886, MS. See, also, same to same, June 7, 1888, For. Rel. 1888, I. 310. (3) REGULATIONS. $ 272. The commissioner to China, having been empowered by the act of 1848 to make, with the advice of the consuls, "regulations" for the carrying into effect of the extraterritorial clauses of the treaty of 1844, action was taken as follows: See messages of the President, Feb. 25, and July 15, 1856, transmitting regulations promulgated by Mr. McLane, S. Ex. Docs. 32 and 92, 34 Cong. 1 sess.; message of Dec. 12, 1856, with regulations by Mr. Parker, S. Ex. Doc. 6 and H. Ex. Doc. 11, 34 Cong. 3 sess.; message of Dec. 10, 1857, with further regulations by Mr. Parker, H. Ex. Doc. 9, 35 Cong. 1 sess.; message of Dec. 27, 1858, with regulations by Mr. Reed, S. Ex. Doc. 11 and H. Ex. Doc. 21, 35 Cong. 2 sess.; dispatch of Mr. Burlingame of Nov. 9, 1864, with further regulations, and Mr. Seward's reply, Dip. Cor. 1865, II. 413, 437; land regulations at Shanghai, 1866, Dip. Cor. 1867, I. 429, and S. Mis. Doc. 89, 47 Cong. 1 sess. 179. a For regulations in force in China in 1882, see S. Mis. Doc. 89, 47 Cong. 1 sess. 69. For regulations agreed on in 1868 for the joint investigation of customs cases, see S. Ex. Doc. 19, 40 Cong. 3 sess., and Dip. Cor. 1868, I. 527. a The Senate passed a resolution to the effect that these regulations needed no revision. (Cong. Globe, 35 Cong. 1 sess. 1203, 1555.) (4) SHANGHAI MUNICIPAL ORDINANCES. $273. "I have received your No. 240 of the 12th of November last, touching the proposed revision of the municipal regulations and by-laws of Shanghai, and offering certain pertinent points for the consideration of the Department. "It appears that by the municipal charter of Shanghai every foreigner owning land of the value of at least 500 taels, or occupying a house of an assessed rental value of not less than 250 taels, is a member of what is called the municipal body,' and is entitled to vote at all municipal elections. The municipal body' elect at stated times a municipal council, consisting of not more than nine members, who have the power to make regulations for the government of the municipality, subject to the approval of the consuls and foreign ministers, or a majority of them, and of the rate payers at a special meeting. "In the proposed revision it is insisted by the municipality, in respect to any by-law that may hereafter be passed, that any such additional or substituted by-law, or alteration or repeal of a by-law, shall be binding when approved by the treaty consuls and the intendant of circuit, or by a majority of them; but the representatives of the treaty powers may, at any time within six months of the date of such approval, annul any such additional or substituted by-law, or alteration or repeal of a by-law.' "Your opinion as to this proposed ordinance is in entire accord with that of the Department, that it would reverse the proper order of things and be highly inexpedient to put in force, without the approval of the foreign ministers, a by-law which they might, in the exercise of an acknowledged power, subsequently disapprove and disallow. This would be in fact the substitution of a power of annulment for the power of veto which the foreign ministers now possess, and would diminish the extraterritorial immunities which citizens of the United States in Shanghai at present enjoy. "The question which you suggest as to the authority of the consulgeneral at Shanghai to enforce the ordinances of the municipality against citizens of the United States is not without difficulty. Under section 4086 of the Revised Statutes of the United States, consuls of the United States in China are empowered to exercise criminal and civil jurisdiction in conformity with the laws of the United States. It is provided, however, that when those 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 to the persons within the consul's jurisdiction; and if neither the common law [nor the law] of equity or admiralty, nor the statutes of the United States, furnish appropriate remedies the ministers in the countries, respectively, to which the statute applies shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies. "The last clause, in respect to decrees and regulations, has been construed by the Department to confer upon the ministers in question the power to regulate the course of procedure and the forms of judicial remedies rather than any general legislative power for the definition of offenses and the imposition of penalties for their commission. It is true that opinion has been divided on this point. Mr. AttorneyGeneral Cushing held that the power given to the commissioner of the United States in China to make decrees and regulations' which should have the force of law gave him the power to legislate in certain. respects for citizens of the United States in China, and to provide for many cases of criminality which neither Federal statutes nor the common law would cover.' (7 Op. 504, 505.) The disposition, however, of this Department has been to restrict the legislative power of the minister to the regulation of the forms and course of judicial procedure, it not being regarded as desirable or proper to authorize the exercise of so great a power, while it was so much in doubt, as that of criminal legislation. "But the ordinances of the municipality of Shanghai, although dependent for their operation as to citizens of the United States upon the approval of the minister of this Government in China, are conceived to present in one aspect a different question from that of the power of the minister of the United States as to criminal legislation. The municipality of Shanghai is understood to have been organized by the voluntary action of the foreign residents [of certain nationalities], or such of [those residents] as were owners or renters of land, for the purpose of exercising such local powers for the preservation of the order and morals of the community as are usually enjoyed by municipal bodies. In the United States, where government is reduced to a legal system, these powers of local police rest on charters granted by the supreme legislative authority of the State; but it is not difficult to conceive of a case in which a community outside of any general system of law might organize a government and adopt rules and regulations which would be recognized as valid on the ground of the right of self-preservation, which is inherent in people everywhere. "In this light may be regarded the municipal ordinances of Shanghai. The foreign settlement not being subject to the laws of China, and the legal systems of the respective foreign powers represented there being not only dissimilar inter se, but insufficient to meet the. local needs, it became necessary for the local residents interested in the preservation of peace and order to supply the deficiency. "American citizens residing in Shanghai enjoy, in common with other persons composing the foreign settlement, all the rights, privileges, and protection which the municipal government affords; and as they go there voluntarily, and presumptively for the advancement of their personal interests, they may reasonably be held to observe such police regulations as are not inconsistent with their rights under the laws of the United States. It is true that this reasoning is not conclusive as to the strict legal authority of the consul-general of the United States to enforce such regulations; but, taken in connection. with the fact that at present American citizens in Shanghai are not subject to any judicial control except that of the consul-general of the United States, it affords a basis upon which his enforcement of the municipal regulations may be justified. "It is important to observe that the jurisdiction of consuls of the United States in China is very extensive, including not only the administration of the laws of the United States, and the law of equity and admiralty, but also of the common law. The consular courts have, therefore, what the courts of the United States generally have not-common-law jurisdiction in criminal cases. It is true that this jurisdiction is difficult, indeed incapable, of exact definition, but it implies the power to enforce rules which are not to be found on the statute book of the United States, and which can be ascertained only by the application of the general principles of the common law to special cases and conditions. In respect to matters of local police, a fair measure and definition of the law may be found in the regulations adopted by the municipality in aid of and supplementary to the general juridical systems of the foreign powers. Such a process, while maintaining the peace and order of the community, tends to consolidate the local administration of law. "The Department is, however, of opinion that all difficulties would be removed if the treaty powers would adhere to the plan suggested in your dispatch of organizing a municipal court to administer the regulations of the municipal body. This course would be advantageous, both to the municipality and to the treaty powers. It would relieve the consular representatives of the latter from the performance of an embarrassing duty, and would secure a uniform and equal administration of the municipal laws." Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, Mar. 7, 1887, MS. See, also, Mr. Bayard, Sec. of State, to Mr. Denby, min. to China, Sept. |