File No. 7655/24–26.
The department, therefore, incloses herewith a memorandum from the
law officer of the department, which deals in detail with the
jurisdiction of the United States Court for China as defined both by
the treaties between the United States and China and by the statutes
of the United States. The law officer also examines in some detail
the criticisms of the Chinese foreign office upon the action of the
United States Court for China in the De Menil case.
You are accordingly instructed to avail yourself of the occasion of
Judge Thayer’s appointment to the United States Court for China to
notify the Chinese Government of his appointment in the spirit of
the department’s No. 211, of November 10, 1906,1 specifically asking
the Chinese Government to instruct the high authorities at Shanghai
and the other treaty ports as to the existence and functions of the
court and to recommend to them cordial assistance to the American
officials in the performance of their duties.
You will, at the same time, tactfully but explicitly bring to the
attention of the Chinese foreign office the consideration set forth
in the accompanying memorandum of the law officer of the department.
The department believes that when the consideration set forth in
this memorandum have been considered by the Wai-wu-pu the Chinese
foreign office will not only acquiesce in the justice of the
conclusions therein expressed as regards the functions of the United
States Court for China, but will be convinced that the proceedings
in the De Menil case were regular, according to the principles of
American law, and that these proceedings disclose no violation of
treaty rights and no intentional discourtesy on the part of the
United States Court for China.
[Inclosure.]
Department of State,
Washington, December 18, 1908.
memorandum in regard to the
functions and status of the united states court for china
and as to the proceedings of the court had in the de menil
case.
The treaty provisions by virtue of which the United States
exercises extraterritorial jurisdiction in China are the
following:
treaty of july 3,
1844.
Art. XXI. Subjects of China who
may be guilty of any criminal act toward citizens of the
United States shall be arrested and punished by the
Chinese authorities according to the laws of China; and
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 in order to the prevention of all
controversy and disaffection, justice shall be equitably
and impartially administered on both sides.
Art. XXIV. * * * And if
controversies arise between citizens of the United
States and subjects of China, which can not be amicably
settled otherwise, the same shall be examined and
decided conformably to justice and equity by the public
officers of the two nations acting in conjunction.
Art. XXV. All questions in
regard to rights, whether of property or person, arising
between citizens of the United States and China, shall
be subject to the jurisdiction of, and regulated by the
authorities of their own Government. And all
controversies occurring in China between citizens of the
United States and the subjects of any other Government
shall be regulated by the treaties existing between the
United States and such Governments, respectively,
without interference on the part of China.
Art. XXIX. * * * The merchants,
seamen, and other citizens of the United States shall be
under the superintendence of the appropriate officers of
their Government. If individuals of either nation commit
acts of violence or disorder, use arms to the injury of
others, or create disturbances endangering life, the
officers of the two Governments will exert themselves to
enforce order, and to maintain the public peace, by
doing impartial justice in the premises.
treaty of june 18,
1858.
Art. XI. All citizens of the
United States of America in China, peaceably attending
to their affairs, being placed on a common footing of
amity and good will with the subjects of China, shall
receive and enjoy for themselves and everything
pertaining to them, the protection of the local
authorities of Government, who shall defend them from
all insult or injury of any sort. If their dwellings or
property be threatened or attacked by mobs,
incendiaries, or other violent or lawless persons, the
local officers, on requisition of the consul, shall
immediately dispatch a military force to disperse the
rioters, apprehend the guilty individuals, and punish
them with the utmost rigor of the law. Subjects of China
guilty of any criminal act toward citizens of the United
States shall be punished by the Chinese authorities
according to laws of China; and citizens of the United
States, either on shore or in any merchant vessel, who
may insult, trouble, or wound the persons or injure the
property of Chinese, or commit any other improper act in
China, shall be punished only by the consul or other
public functionary thereto authorized, according to the
laws of the United States. Arrests in order to trial may
be made by either the Chinese or the United States
authorities.
Art. XXVII. * * * All questions
in regard to rights, whether of property or of person,
arising between citizens of the United States in China
shall be subject to the jurisdiction and regulated by
the authorities of their own Government; and all
controversies occurring in China between citizens of the
United States and the subjects of any other Government
shall be regulated by the treaties existing between the
United States and such Governments, respectively,
without interference on the part of China.
treaty of november 17,
1880.
Art. IV. When controversies
arise in the Chinese Empire between citizens of the
United States and subjects of His Imperial Majesty which
need to be examined and decided by the public officers
of the two nations, it is agreed between the Governments
of the United States and China that such cases shall be
tried by the proper official of the nationality of the
defendant. The properly authorized official of the
plaintiff’s nationality shall be freely permitted to
attend the trial and shall be treated with the courtesy
due to his position. He shall be granted all proper
facilities for watching the proceedings in the interests
of justice. If he so desires, he shall have the right to
present, to examine, and to cross-examine witnesses. If
he is dissatisfied with the proceedings, he shall be
permitted to protest against them in detail. The law
administered will be the law of the nationality of the
officer trying the case.
It will be observed that these treaty provisions do not attempt
to specify the manner in which, or the officers by whom, the
extraterritorial jurisdiction conferred upon the United States
shall be administered. The provisions in so far as they refer at
all to the officers through whom extraterritorial jurisdiction
is to be exercised, are couched in the most general terms such
as the following: “By the consul or other public functionary of
the United States thereto authorized, according to the laws of
the United States” (art. 21, treaty of 1844); “by the public
officials of the two nations acting in conjunction”
[Page 59]
(ib., art 24); “by the
authorities of their own Government” (ib., art. 25); “the
appropriate officers” (ib., art. 29); “the consul or other
public functionary” (art. 9, treaty of 1858); “the proper
official of the nationality of the defendant * * * the properly
authorized official of the plaintiff’s nationality” (art. 4,
treaty of 1880). It would therefore appear that the question as
to the title and the functions of the American officials who
exercise the extraterritorial jurisdiction conferred by the
treaties within Chinese territory are matters entirely within
the discretion of this Government.
For a long time this Government saw fit to repose the judicial
authority conferred by the treaty in its consular officers.
Recently following the example of other nations who have acted
under treaties substantially similar to those between the United
States and, China, this Government has deemed it best to
transfer a considerable portion of the judicial authority
heretofore exercised by our consular officers, and all the
judicial authority heretofore held by the United States minister
in China, to a tribunal whose functions are entirely judicial
and which is called the United States Court for China. Under the
provisions of the act creating this court it is also given
appellate authority in regard to judicial matters over which
consular officers retain jurisdiction, the appellate authority
formerly exercised by the United States minister being now
vested in the United States Court for China. No appeal lies from
the decision of the United States Court for China to the
minister of the United States at Pekin, provision being made by
the act creating the court for China for an appeal to the
“United States Circuit Court of Appeals for the Ninth Judicial
District.”
Under these circumstances, it must be assumed that the Wai-wu-Pu
was under some misapprehension as to the scope and meaning of
the act creating the United States Court for China when it
indicated its intention to regard the American minister at Pekin
as having ultimate appellate jurisdiction in all matters
concerning the exercise of judicial power over Americans within
Chinese territory.
At the same time it is hardly necessary to add that the Wai-wu-Pu
is quite correct in its position that “in all legal cases the
board of foreign affairs will as formerly deal with the American
minister,” except that it is not quite clear why the Wai-wu-Pu
should set forth with such particularity its intention to deal
with the American minister in “all legal cases,” inasmuch as the
American minister is naturally the person with whom the
Wai-wu-Pu should deal in the future, as in the past, not only as
regards legal matters, but all other matters American. It is
believed that the considerations above set forth should be
discreetly but explicitly brought to the attention of the
Chinese foreign office.
Recurring once more to the provisions of the treaties under which
the United States exercises extraterritorial jurisdiction in
China, it will be observed that the treatties provide that
“citizens of the United States who may commit any crime in China
shall be subject to be tried and punished * * * according to the
laws of the United States.” (Art. 21, treaty of July 3, 1844.)
Again, “citizens of the United States * * * who may insult,
trouble, or wound the persons * * * of Chinese * * * shall be
punished only * * * according to the laws of the United States.”
(Art. 11, treaty of June 18, 1858.) Again, “when controversies
arise in the Chinese Empire between citizens of the United
States and subjects of His Imperial Majesty * * * the law
administered will be the law of the nationality of the officer
trying the case.” (Art. 4, treaty of Nov. 17, 1880.)
It is therefore expressly stipulated that the trial of an
American citizen for killing a Chinese subject shall take place
not only before a “functionary of the United States” but also
“according to the laws of the United States.” And the rules of
Anglo-Saxon jurisprudence, both statutory and common law, must
apply in accordance with the provisions of the act of Congress
(R. S., 4083, 4130), and the act of June 30, 1906, creating the
United States Court for China.
The argument of the Wai-wu-Pu that De Menil should have been
convicted because his intent to kill his guard whom he did not
injure, should be construed as an intent to kill the lama whom
he did kill, thus supplying constructively the necessary
criminal intent, is in accordance with the rules of American
law, provided the court had found that there was, in fact, an
intent to kill the guard. But a careful reading of the record in
the case, and especially the judgment of the court, fails to
show that the court found any intent on the part of the
defendant to injure anyone. A quotation from the
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judgment in which the evidence is
summed up will show the attitude of the court upon this
point.
The physical condition of the accused at the time of the
shooting was bad and was aggravated by the rarefied mountain
air of the locality, the loneliness of the place, and the
wildness of his surroundings. This being so, it is not
surprising that he should become irriated on account of the
improper conduct of one of his escorts. However, when we
consider that the lama who was killed, was unknown to the
accused, that the first shot was fired for the mere purpose
of intimidating Li and not with a view of hurting him, and
that the surrounding circumstances were such as to affect
seriously the nervous condition of the accused, the
conclusion is irresistible that the shooting which caused
the death of the lama was without the slightest criminal
intent.
This leaves to be considered the question whether the conduct
of the accused was of such a careless nature as to render
the act complained of criminal in the eye of the law. We are
of the opinion that it was not. The hamlet of Laku consists
of only four or five huts, and is situated on a high
mountain in a sparsely-settled country. The road upon which
the lama was traveling was higher than the place where the
accused stood when he fired the shot, and he testified that
this fact had not been previously observed by him. The
testimony shows that there were trees intervening between
the lama and the accused at the time the fatal shot was
fired, and it is doubtful whether the lama was in sight at
the time. Had the shots been fired in a village located in a
thickly settled portion of China, defendant’s conduct would
be characterized as criminal carelessness. All of the
evidence goes to show that the accused has hitherto borne a
good name, and that he is a peaceable law-abiding citizen.
He was educated at Washington University, St. Louis, Mo.,
and is a duly licensed practitioner of medicine. He has
already been under arrest for a number of months and has
suffered much inconvenience and pain. He testified that he
was arraigned before the Chinese courts at Artunza, which,
though not having jurisdiction, heard the evidence and
reached the conclusion that the killing was the result of an
accident. In view of all of the circumstances, the court
does not feel that the ends of justice would be subserved by
imposing further punishment upon the accused. He is
therefore acquitted.
On this finding of facts the doctrine of constructive intent is
inapplicable, and the accused is necessarily acquitted.
Moreover, to rearrest and retry De Menil after his having once
been acquitted would be contrary to the principle of Anglo-Saxon
law embodied in the Constitution of the United States
(Amendments, Art. V), “nor shall any person be subject, for the
same offence, to be twice put in jeopardy of life or limb.” De
Menil having been tried for murder and acquitted, a plea of
former jeopardy would at once be successfully interposed if any
attempt were made to retry him for the same offense.
Finally, the Wai-wu-Pu protests that the Shanghai taotai who
represented the Chinese Government to watch the proceedings of
the court, “had not time to insist upon the fulfillment of
treaty rights.” This complaint is not understood, inasmuch as
the department had understood that the city magistrate of
Shanghai, who watched the case on behalf of the Chinese
Government, was given every facility, and was seated on the
bench with the court, to afford him every opportunity to
exercise his treaty rights.’ The case was called for trial
before the United States Court for China on November 8, 1907,
and the judgment was not given until December 2, 1907, over
three weeks later. So far as the department is informed no
protest, based on the allegation that inadequate time was being
afforded, was made to the court during the course of the trial.
It is true that in a dispatch from his honor, Laing, taotai of
Shanghai, to Hon. Charles Denby, American consul general at
Shanghai, in regard to this case, dated January 13, 1908, the
taotai says that no copy of the judgment was sent to him until
he wrote and asked for it, by which time the prisoner had
already been released.” If, through any oversight, every
suitable opportunity was not given the Chinese representative to
exercise his treaty rights or any courtesy was omitted it would
naturally be a subject of great regret on the part of the
department, and it is suggested that, without meaning thereby to
intimate the slightest belief on the part of the department that
the United States Court for China was in fact remiss in
according all proper facilities and every courtesy to the
Chinese city magistrate, a copy of this memorandum be sent to
the United States Court for China out of greater caution in
order that the treaty provisions in question may be drawn
specially to the attention of the court.
