Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1909

File No. 7655/36.

Memorandum to the Chinese Legation.

Department of State,
Washington, July 29, 1909.

Referring to the memorandum left at the Department of State by the Chinese minister on the 10th ultimo¹ concerning the case of De Menil [Douminet], an American citizen, who was charged with the killing of a lama in Yunnan and acquitted by the United States Court for China at Shanghai on the ground that the killing was accidental, it is now pointed out that this case has on several occasions received the considerate attention of the Department of State, and this Government’s position in regard to it has been communicated to the Chinese authorities at Shanghai by the American consul general at that place.

The Department of State, however, can not fail to avail itself of the present opportunity to give a clear statement of the American law governing the case, in order that the Chinese Government may not misunderstand the attitude of the United States.

As is already known, De Menil, as the result of the killing of the lama, was tried before the United States Court for China on the charge of manslaughter. After a fair and impartial trial in accordance with the laws of the United States, in the presence of a representative of the Chinese Government, and at which the testimony of the Chinese witnesses was heard, the judge of the court reached the conclusion that the killing was the result of an accident and therefore acquitted the accused. The Chinese Government then protested against the decision of the court and requested that De Menil be retired. This request, however, could not be granted because the rearrest and retrial of De Menil, after his once having been acquitted, would be contrary to the principles of American law embodied in the Constitution of the United States (Amendments, Article V), which says, “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 manslaughter and acquitted, a plea of former jeopardy could at once be successfully interposed if any attempt were made to retry him for the same offence.

The Chinese Government suggested also that the court in adjudging the De Menil case should have provided compensation for the family of the lama who was killed, but this Government explained that the case was a criminal prosecution for manslaughter and not a civil suit for damages based upon negligence.

The Chinese minister has suggested that “the American Government should devise some way by which the relatives of the dead man should receive some sort of satisfaction” or that De Menil “should be made to fulfill the promise he made to the relatives of Pu Keng Lung in Yunnan,” namely, to compensate them in any manner they might desire for the killing of their son, and to hold himself responsible for the consequences of his act.

The Department of State, however, regrets its inability to comply with either of these requests. In the first place this Government can not be held responsible in damages to the relatives of the unfortunate lama for the act of a private citizen traveling in China. In the second place there is no way under the laws of the United States whereby this Government can compel a private citizen to fulfill a promise to the subjects of a foreign nation.

The only legal remedy which the relatives of Pu Keng Lung appear to have, under American laws, is that which was suggested, in accordance with this department’s instructions, to His Excellency Ts’ai Nai Huang, customs tao-t’ai of Shanghai, by the American consul general at Shanghai, under date of April 24 last, namely, a civil suit against De Menil for damages based on negligence. As was stated by the consul general, such a civil suit might be brought if, in the opinion of the family of the deceased, and they are so advised by counsel, death was due to the negligence of the defendant, and if the defendant can be located within the jurisdiction of the United States Court for China, or some other court of competent jurisdiction.

The Department of State trusts that this explanation will enable the Chinese Government to understand the position of the United States in regard to the case and to further understand that in prosecuting De Menil criminally for his act, although such prosecution resulted, from the evidence submitted, in his acquittal of the charge, this Government has exhausted its legal remedies against the accused, and for any further redress the aggrieved Chinese subjects must look to a civil suit against De Menil in accordance with the suggestion already made by the Department of State to the Chinese Government.

1. Dated June 9, 1909.