NiTYCOILEG UBRA~Y M.OOR.E COLLECTION RELATING TO THE FAit EAST CLASS NO.-­ BOOk NO.-­ VOLUME _ ___,~ ACCESSION NO. 97S CHINESE COURT BILL

HEARINGS

BEFORE THE COMMITTEE ON FOREIGN AFFAIRS HOUSE OF REPRESENTATIVES

WA HINGTON GOVER MENT PR NTING OFFICE 1908

CHINESE COURT BILL. CoMMITTEE oN FoREIGN AFFAIRs, Wednesday, Marclp 11,1908. The subcommittee met this dav at 10.30 a. m., Ron. Edwin Denby in the chair. ·

STATEMENT OF STIRLING FESSENDEN, ESQ., OF , . Mr. DENBY. Plf•.ase give your full name. Mr. FESSENDEN. My name is Stirling Fessenden. Mr. DENBY. Where do you reside~ Mr. FEsSENDEN. At Shanghai, China. Mr. D:~

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Mr. DENBY. That meant that prior to the advent of the court and prior to the Roberts will case decision, particularly~ Mr. FESSENDEN. I do not think it was in the Roberts will case that that common law decision was made. I think it was made in another case. Mr. DENBY. It was in a case of obtaining money under false pretenses? l\Ir. FESSENDEN. That was the Biddle case. 11r. DENBY. Yes; and that part of the decision was upheld by the court of appeals. Mr. FESSENDEN. Yes; I think so. After reading the decision of the appellate court, there was some question in my mind whether they based it exactly on the same reasons as did the judge of the Umted States court for China. Mr. DENBY. That leaves it still more necessary that that law shall be corrected and improved~ 1\tlr. FEs ENDEN. My impression is that the appellaLe court was rather inclined to go on the ground that the situation there in China was somewhat analogous to Government property here, like a post­ office, or anything of that sort; that the general common law of the United States extended over American citizens there, as if in a sense China were regarded as United States territory, and I believe they made that a somewhat important basis of the decision. I am only stating that from recollection. Mr. DE BY. Of course the law in the United States now is that on a Government reservation or on Government l?roperty the law of the locality in which that reservation is situated, m the absence of other United States law governing it, shall be held to apply~ Mr. FESSENDEN. Yes. Mr. DE BY. And it would be hard to know, if we regarded China as a reservation in that sense-it would be hard to know what the law is? Mr. FESSENDEN. Yes; that is where the uncertainty as to exactly what was meant by this decision arose. The appellate court judge in his written opinion was somewhat obscure on that point-- Mr. DENBY. Leaving the matter still in some doubt? :Mr. FESSENDEN. Yes. Mr. DENBY. And one of the difficulties in that question is, as I understand it, that there are certain crimes and certain rights that are not touched upon at all by the United States statutes and the common law, concerning which we had no law to govern? Mr. FESSENDEN. Yes. I can give you an illustration. The crime of embezzlement is not a common-law crime and never was. There is perhaps more than one statute of the United States covering embezzlement on the part of Government employees, but there is no United States statute which applies to embezzlement generally, so that there was no law under which a man could be legally pumshed for embezzlement committed in China. Mr. DENBY. That being covered by the provision that the law governing localities should govern? Mr. FESSENDEN. Yes. Mr. DENBY. It was found in China at that time that there was V~IJ:" great difficulty in administering substantial justice and deter­ numng questions among people, civil and criminal~

------~~------~--~------6 CHINESE COURT BILL. ,T t d" {J'culty · and that became Mr. FESSEXDEN. ~ e ; very grca uu . ' . . rr ·tude of Amencan mterests mcreased more apparen t as tlle ma..., 111 h t' hi h there. \Vhen the interests were very mal1 t e ques IOns w c ~arne t · portant · but to-day there are a great many busmess l!Pt we ret nof so lrym lar

1 ow, we come t o a point, Mr, Fe:>senden, on which I lmow a violent clifierence of opinion exi ts at Shanghai it elf. 'l'hi bill pro­ vide for a ses ors, and for the methoion that if they dis.ent from. him, their dis­ sent shall be [orward<.'d as a pnrt of the record to th court of appeals in case of appeal. In your opinion that i sufficient as it stands, i it, or do you think the asse sors should have jury powers~ If you do not care to give an opinion on that, ne,er mind. :Mr. FESSENDEN. My opinion il::l that the provi ion a expr s eu in the bill ought to \\'ork very well, because l go on the a umption that a j utlge itting on the bench would not voluntarily go again t the finding of fact of the as ·e sor unles there wa ,orne v ry excel­ lent rea on for it, and th moral etrect of the findings of fact by the a scssor, would, of course, weigh considerably with any judge. Mr. DENBY. Is not the argument omewhat similar to the argument which leads to giving to the courts in this country the power to set a ide the finding of a jury when it considers it nece sary to do so o that you think that that provision with re pect to as e sors would he atisfactorv? 11r. FEs ENDEN. I think it ought to be tried, anywav; I think it is as good an arrangement as you could probably get. · 1Ir. DENBY. You would rather ee that in the hill, or ee the a essor 'ested with full jury powers? Mr. FESSENDEN. I think that would be as good as that. }.fT. DENBY. tTow, on page 10, line 14, the .bill provides: " The court may, for lawful cau e hown, excuse fTom attendance generally or in a particular action any person liable to be summoned as asse sor, and may, for like cau c, dlscharge an y a ses or from further attend­ ance." What lawful cause would he held to cover,· in your opinion? 1fr. FEsSENDE~. I . uppose that would cover the u ual rca on for excusing a juror in thi country. 1fr. DEXBY. Relation hip, or violent prejudice, or the causes set forth in the bill; business, or death in the family, or ickness I Mr. FESSENDE~. Yes. Mr. DEXBY. You think that provi ion i safe? 1Ir. FEssENDE.'. Ye . Of course in working it out practically it might rrsult in ~~our getting tLree a cssors of a particular reli~wus sect, and all that, whose opinion might be violent. You could not help t.hat, however. Mr. DE .~ BY. The judge would have the right to refuse them. Mr. FESSENDEN. I think that is a good an arrangement as you could O'et. Mr. DENBY. And be ide th attorneys could protect their rights and et forth the reasons why they might be excu ed. 1 ow let us consider the ection as to juri diction. . Mr. FE SE 'DEN. I do not ee any objection to that. I think that 1 very good. 11r. DENBY. I will ask you to state why it seems particularly desir­ able that the laws of the State of California, where not inapplicable, shall be extended to China~ 14 CHINESE COURT BILL. HINESE COURT BILL. 15 . Mr. FE. s.ENDEN. There are two reason in my mind. One is that Mr. FE ENDE:-1 . o, I do not think so, o long as in all the e minor m the opmwn of a good many lawyers, who have examined the laws actions you could have as essors to find the facts. If vou gave them of California, it is he1d that those law are reduced to a very definite assessor., no appeal; without asse sors, then an appeai. form and hape and are not so voluminous and complicated as the Mr. DENBY. ~ow, as to the jurisdiction of consular courts in rela­ laws of some of the other States. tion to the removal of actions; you notice that it states the consular Mr. DENBY. They were written by Justice Field were they not~ courts shall have concurrent j urisdiction~ · :1~r. F~s ENDEN. Ye~; and besi~es .that our ' appeal court is in Mr. FE END EN. Y cs; T noticed that. C~hforru~ , an.d our Uruted St~tes crrcmt court there i more familiar Mr. DENnY. Would you make that exclusive~ wit~ C!l'hfo~ru~ law and practiCe and procedure; and as we are just Mr. FEs EN~EN. There would probably be cases of uch magni­ begllllllng, It IS perfectly easy ~or us to conform our practice m a tude that parhes would prefer they houlcl go into tlw United States measure to ~hat, so that there will be a ort of sinlllarity between the court for China in the fir t instance. You have proYided for that I two courts, m a sense. think. It would seem to me that it might possibly be better to Mr. DENBY. Have you any objection to our comments to make substitute the word "exclusive" for ''concurrent" in line 14 it on the provi o of section 6, that the judge shall have authority from being of course understood that an appeal will lie from the deci~ion ti~e to .tim.e to modify an~ supp lem~nt the. rule~ of procedure~ you of the con ular court to the United State court for China in all ca es. Will notiCe m that connection that hi modrficatwn or upplementing I do not ce any reason f r giving a concurrent juri diction which hall only have the force and effect of law upon the approval of the apparently mean that a man may bring hi action in any c~urt he Secretary of State. In other words, he is not left with plenary \vishe . If you are going to give concmnmt jurisdiction, ·you might powers to make the modifications as he wants to. just as well have no con ular court, practically. :Mr. FESSENDEN. o. I think the provision is necessary, there Following up the same line of arcrument, i would suggest, if the being no established procedure for that court that you could really committee concurs, that the :phrase tr concurrent juri dictwn" should call an establi heel procedure. It i necessary to evolve that as be changed to "exclusive junsdiction," and that in lines 11 to 15, on time goe on, and a the condition there are very peculiar, eventually page 15, the words" or on its own motion and for rea on to be made the procedure of that court will be a practice sui generis. It belongs of record " be trick n out. to it elf, and it mu t be a matter of experiment from time to time. Now, coming to bankruptcy and patent and trade-marks, there is .Mr. DENBY. Is there anything in the appeal proviso, ection 7, on ~me thing that I want to oifer as a suggc tion. I think the provi ion which you have comments to make~ Itself i all right, althou~~ at the outset there may be difiiculty in Mr. FESSENDEN. Yes. There is one on page 14. I make the sug­ admini tering all these things under the peculiar conditions. But gestion on the assumption that an additional JUdge shall be appointed I want to uggest thi to you: As the bill 1 drafted, it seems to me there. It says: upon the application of any foreigner a acrainst an American the court Prot•ided. however , That there shall be no review of the findings of fact in actions would be obliged to enforce the laws appYying to trade-marks, and o of whatever nature originally involving a value not exceeding :five hundred dollars forth. As you are well aware, this whole matter of trad -marks is a or a penalty of one hundred dollars fine or sixty days' imprisonment, or both, if heard subject of treaty, and wa taken up by Germany, England, Japan, without assessors, or, .in which, whatever the value or penalty involved , being heard with as essors, the judge and a majority of the as essors shall have agreed in the France, and the United States, I believe, in 1903 or thereabouts, and findings. they covered this whole trade-mark business; but the e treaties, as I understand, have not yet been ratified entirely, so that all the pro­ I sugge t that if this additional judge is appointed, if a ca e of that vision of trade-marks which they cover have not been put in forc e. nature I tried before a ingle iudge he may appeal to the full bench ow, I sugge t that the nited State courts be given power to and go no further. That i , if he i di atis:fied, let the litigant have enforce the law regarding trade-mark in their di cretion in favor of the ca e ubmitted again to two judge sittin~ together. I think foreigners who ~ive u a reciprocal protection. they have a provision or cu tom of that sort m the Briti h court. Mr. DENBY. 1 think that IS a good point. There i a strong feeling in the community that they should not be Mr. FESSENDEN. I will cite an illustration. The Japanese have shu t off from appeal in all cases, because they have always had the shown a marked tendency to appropriate American trade-marks, and right of appeal. I do not think any great harm would be done if you to refuse to extend any protection to the citizens of any other nation let that stand. who apply for protection against infringement by the Japanese. I Mr. DENBY. If, on the other hand, the bill doe not provide. for the creation of a new judge, but if the power to try these mm?r think It. would n?t be wise forth~ American courts to protect a Japan­ ca es i left with an official of the con ulate-general, would you .still e e subJect, form tance, as agamst an American, when an American ~ubj ect does not get like protection in a Japane e court against believe in leaving an appeal with the United States court for Chma ~ ~fTmgement of. a~ American trade-mark by Japane c. I think that Mr. FEs E DE . Yes; I think so, for this rea on: Becau~e out there, under the peculiar conditions of extra-territoriality, difficult m~smu h a this 1s a matter of treaty out there, the condition that exists there should be borne in mind· and I cite you an actual exam­ points of law and que tions of fact frequently ari e that a~e very ple, which. will trate what I mean'. I traveled the whole length of Important and serious, and I think that should be left open m tha~ il~u way . the Impenal Rmlway from Ching Wan Taow to Tientsin shortly af-ter Mr. DENBY. But you would not want to carry tho appeal beyond the United States court for China, would ou ~ HINESE COURT BILL. 15 :Mr. FEssENDEN. No, I do not think o, o long as in all these minor actions you could have a se sors to find the facts. If You gave them as essors, no appeal; without assessors, then an appeal. Mr. DE.TBY. ~ow, as to the jurisdiction of consular courts in rela­ tion to the removal of actions; you notice that it states the consular courts shall have concurrent jurisdiction? · :Mr. FE SENDE . . Ye ; I noticed thaL. Mr. DENDY. Would you make that exclusive~ :Mr. FESSENDEN. There would probahlv be case ' of ,'uch macrni­ tude that partie would prefer they shoulcl go into the United St~tes court for China in the first instance. You have pr

L_- ---~------~- "------~-- ·~-~------16 CHINESE COURT BILL. the British-American Tobacco Company had sent their advertisincr car along that route and placed their advertisements along the line o¥ the railroad track. Shortly after that a Japanese tobacco company, trav­ ersing the same route, painted out the name of the British-American Tobacco Company from the advertisement and inserted their own name, and up to the present time I have still to learn that the British­ American Tobacco Company could get any redr~ss. It is a well-known fact in the busine s community in the East that just before the Japanese trade-mark law came into operation certain Japanese individuals filed with the Japanese Government American trade-marks as their own, among them being, as reported, those of the Singer Sewing Machine Company and the Columbia bicycles and other firms and compelled the real owners of those trade-marks to buy them back from the individuals who registered them, and no redress could be obtained from the Japanese courts. Mr. DENBY. That was in Japan~ Mr. FESSENDEN. Yes. Mr. DENBY. In order to get their registration in they had to buy them back from tho e fakirs. Mr. FESSENDEN. Yes. No single business question in the East has given us quite so much difficulty as this trade-mark question, and although a trong attempt has been made to regulate 1t by treaty, the provisions of the treaty have not come into effect, because it was reported that the Japanese and possibly others are not really acting with a bona fide intention of submitting to reciprocal protection. That is what it amounts to. Therefore I think the court should be given discretion as to whether it hould enforce the laws of the United States in such cases. · M]:. DENBY. On page 21, line 5, this clause appears, that- Real property in China belonging at the time of his death to a citizen of the United States dying after the dat<> when this act shall become of force shall be deemed to be personalty, and shall be subject to the law herein provided for the administration and devolut10n of an estate of p rsonalty. That section seems to be a very necessary and important one. Mr. FESSENDEN. So far as I can see, it seems to be a very excellent one. That is my opinion. Mr. DENBY. Mr. Fessenden, is it not true that one of the great dif­ ficulties in administering estates in China, which are possessed of realty, is to determine what law shall govern~ . :Mr. FESSENDEN. Precisely. Mr. DENBY. The rule in the United States, of course, is that· the law of the site of realty shall govern, but in these instances the law of the site of the realty is Chinese law, complicated and difficult to administer. That is the reason, is it not, why it is -e.dvisable to put in this section? Mr. FESSENDEN. Yes, sir. I do not see that any possible harm could come from regarding real property in that way, because the British practice for years out there has been to disregard the law of real property in matters of dower and transmission of decedents' property. They have never followed the law at home, because it is practically impossible to do that. :Mr. DENBY. The realty remains realty while the parties are living~ Mr. FESSENDEN. Yes. CHINESE COUR'l' BILL. 17

Mr. DENBY. When it comes to the administration of e tates of decedents, it becomes personalty, and this is a very good provision~ Mr. FESSENDEN. Yes, sir. Mr. DENBY. Have you any comments to make on the provision begim1ing on page 24, that- Any offense committed by a citizen of the United States on a ship of American registry, or on a ship of foreign registry in the company of which ship he was not enrolled, or on a Chinese or other ship not lawfully !"ntitled to claim the protection of the flag of any recognized state or power, on the high seas at a distance of not more than two hundred miles from the coast of China and beyond the jurisdictional wat!"rs of another state or power, said ship being bound for or first coming into a hinese port, shall be deemed an offense within the jurisdiction of the United States in China for all purposes equally as if committed within the territorial jurisdiction of China. Mr. FESSENDEN. I do not see any objection to it. That is all right, I think. In the next paragraph, beginning on line 13, in regard to the deten­ tion of Amencan ships pending trials, a seriou question arises­ whether the end in Vlew ju ti:fies the broad power given. I would like just to call the attention of the committee to the ~reat extent of the power given and the trifling character of the ordinary offenses committed on those vessels. Another consideration is that, as some­ times happens, employees on a vessel have a grudge against the own­ ers or the officers of a ship, and this provision m1ght put it in their power t.o serve their grud!Se to their heart's content without danger or cost to themselves ana to embarrass the innocent owners of the hi . s p~w, I think this extradition provision is very good and very important. 1 do not know ju t how it would always work, but I would imagine it would work well. Mr. DENBY. You have read that extradition clause, have you, and find it all right in a O'eneral wav? Mr. FESSENDEN. Yes. It will have to be tried before it becomes absolutely perfect; but it will work out, I think. Mr. DENBY. Now as to nationality, on page 28. What suggestion do you make as to that clause? Mr. FESSENDEN. I consider that section 14 it> unnecessary, and that the law as it stands is sufficient, and suffiCiently covers the subject-matter of that section. This is a radical change of estab­ lished law, as to which, in my judgment, no conditions exist war­ ranting it. It says: SEc. 14. NATIONALITY.-ln actions brought in the courts of the United States in China the petition or information or like pleading must allege that the defendant is a citizen of the United States or under the protection of the United States, and this allegation will be presumed to be true and need not be proved except when the defendant, under oath, denies that he is a citizen of the United States or under tne. protection of the United States. In criminal actions, wherein it is proved that the accused is commonly reputed to be a citizen of the United States or under the protection thereof, a plea of foreign nationality on the part of the defense shall be required to be proved affirmatively. You see, the consul-general and other oiTicia.ls object to the prin- ciple involved. Mr. DENBY. You say they object to it~ Mr. FESSENDEN. Yes. Mr. DENBY. You think that clause or section might come out bodily~ Mr. FEsSENDEN. Yes. 33735-08-2 18 CHINESE COURT BILL. 1lr. DENBY. Then we will pa on to section 15, as to rules of court. You approYe of that ubstantially, I under tand? Mr. FESSENDEN. I do. :Jlr. DEKBY. That doe not change the existing law. Mr. FESSENDEN. o far as section 15 is concerned, I see no objec­ tion. Tllis is the rule now in en·ect. Mr. DEXBY. Now, Mr. Fessenden, speakin~ generally, you believe, do you not, that the enactment of thi bill is not only advisable, but you may say ab olutely necessary for the proper administration of justice and of our court in China~ l\lr. FE ENDEN. Ye , ir. The bill with the sugge tion I have made is a good bill, and i necessary.