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BOARD OF EDITORS OF THE AMERICAN JOURNAL
OF INTERNATIONAL LAW
CHARLES NOBLE GREGORY, State University of Iowa.
Editor in Chief
THE SUCCESSION IN CHINA
During the month of November last a series of important events occurred in the grect Empire of China. After a nominal reign of thirtyfour years, the Emperor Kwang Hsu died on November 13, and the next day the Empress Dowager Tsi Hsi also died. A considerable part of Kwang Hsu's reign was under a regency, and during his majority he was in poor health. Hence, he depended to a great degree upon the assistance and advice of his aunt, the Dowager Empress, in directing the government of the Empire.
Tsi Hsi was one of the most masterful female rulers of all history. She was the secondary wife of the Emperor Hsien Feng, who died in 1861. She bore him a son, who became Emperor, reigning from 1862 to 1875, and died without issue. The Empress Dowager thereupon cansed to be chosen as ruler Kwang Hsu, son of her sister and of Prince Chun, brother of the Emperor deceased in 1861. This brief sketch of her relation to the Throne shows that Tsi Hsi has been practically the ruler of China for the past half century.
It has been an eventful reign, seldom equaled in the long history of that ancient people. She fled with her husband from Peking in 1860, on the approach of the allied British and French armies, and witnessed his demise from a broken heart over the humiliation of his country. Under her administration the Tai Ping rebellion came to an end, the formidable Mohammedan revolt of ten years later was suppressed, as well as numerous minor movements for the overthrow of the Manchu dynasty, the Empress Dowager showing a courage and skill equal to that of Catharine of Russia. Although the foreign wars and encroachments gave her much anxiety, she met them with a heroic devotion which won the confidence of her statesmen and people.
The recent reforms in the Empire which have so greatly attracted the attention of the outside world, if not directly inspired by her, have been decreed under her authority, and it is understood she heartily entered upon their enforcement. The summons to Peking of Chang Chi-tung and Yuan Shi-kai, the two most powerful and advanced men of the Empire, that she might have them near the Imperial Palace in her last days, was an indication of the spirit which animated her. It was after their arrival that the memorable edict was issued on the 27th of August last proclaiming the intention of the Throne to give a constitution to the country within nine years.
Before his death, Kwang Hsu, with the approval of the Empress Dowager, chose Prince Chun as Regent of the Empire, and named the latter's son, Pu Yi, an infant of three years, to succeed him as Emperor. This act was in accordance with the laws and usages of the Manchu dynasty. There is no heir apparent in China. The reigning sovereign has the right to select before his death or in his will any one of his sons as his successor, and, in default of sons, one of his near kinsmen of the imperial family. Prince Chun, the recently designated Regent, is a younger brother of the late Emperor, two other brothers being still alive. Such a selection is not unusual. The famous Emperor Chien Lung, who died in 1795, after a sixty years' reign, had seventeen sons, and chose the fifteenth son as his successor. Tao Kuang, deceased in 1850, had nine sons and selected the fourth as. Emperor.
The name or style of reign selected for the infant Emperor is Hsuan Tung. The cabinet, or grand council, which will advise the Regent Prince Chun, consists of the following five eminent persons: Prince Ching, a member of the imperial family, president of the Wai Wu-pu, or foreign office; Hsi Suh, a Manchu and a grand secretary; the Viceroy Chang Chi-tung; Lu Chuan-Lin, late viceroy of Szechuan; and Yuan Shi-kai, Minister of Foreign Affairs. The cabinet usually consists of an equal number of Manchu and Chinese members. A vacancy exists by the promotion of Prince Chun to be Regent. These important changes in the state have taken place without any disturbance of the public order or any manifestation of discontent, which augurs well for the country and the Emperor. The Regent has the advantage over an of the preceding rulers of the Empire that he is acquainted with foreign lands, having made a journey to Europe a few years ago, accompanied by Sir Chentung Liang Cheng, late minister to the United States. The liberal and progressive views of the new Regent seem to be shown in his prompt recognition of the recent reform measures of the late Emperor, and especially in his edict declaring his intention to carry forward the preparation for the promised constitution.
In the issue of the JOURNAL for January last a full history was given of the Chinese indemnity and of the action of Congress, in authorizing the remission of about one-half of the amount to which the United States was entitled under the protocol of the powers. Since that date the Chinese Government has been officially advised of the action of the Government of the United States, and in manifestation of the gratitude of the Chinese Government and people a special embassy was sent to Washington to convey to the President their appreciation of his justice and magnanimity. This embassy arrived in December and has delivered to President Roosevelt the thanks of the Emperor.
In addition to this gracious act, the Chinese Government has given notice that it will send to the United States a considerable number of specially selected young Chinese, during the next twenty-five years, to be educated in its schools and colleges. The expenditure for these young men it is estimated will amount to the full sum of the remitted indemnity.
The Special Ambassador Tang Shao-yi, who is at the head of this embassy, is one of the notable men of the Chinese Government. He was educated in the United States about twenty-five vears ago, has a perfect knowledge of English, and is fairly well versed in American institutions. His early service for his Government was in Korea as secretary to Yuan Shi-kai, the Chinese resident of that country while still a quasi dependency of China. Other of his diplomatic labors were in the negotiation at Calcutta of the Tibetan convention with Great Britain, and the settlement of Manchurian questions at Peking with Baron Hayashi, the Japanese envoy. Until recently he was junior vice-president of the Wai Wu-pu and controller-general of customs, which posts he relinquished to assume the important and delicate duties of governor at Mukden.
It will commend Tang Yao-yi to the friends of humanity to state that he has been the most active leader in the antiopium crusade. It was his activity which in large degree brought about, under the leadership of Secretary Root, the antiopium international conference at Shanghai.
ARBITRATION TREATY WITH CHINA
October 8, 1908 The United States has made the maintenance of the territorial integrity of China a cardinal part of its foreign policy, not because the United States desires to preserve China as a field for political expansion or commercial development, but because our Government admits the right of China to independence and seeks by all possible and appropriate means to aid the Chinese to realize in the fullest measure the destiny marked out for it in Asia. It is unnecessary to set forth the steps by which China has been opened to the world and the great and honorable part taken by the United States in the movement, as this subject has been carefully considered in a previous issue of the JOURNAL.'
The result is that China is not only opened to the world, but the great powers which may be supposed to cherish designs against the integrity of China or to obtain exclusive privileges have one by one accepted the American policy as formulated by Secretary Hay and declared in formal and express terms their intention to maintain the integrity of China and the equal opportunity of all nations in the industrial and commercial development of the great Empire.?
The United States has not only maintained the principle of Chinese territorial integrity and equal commercial opportunity, but has concluded a treaty of arbitration with China, thereby recognizing its equality and its claim to a like treatment with other nations. The United States on October 8, 1908, signed a treaty of arbitration with China in accordance with the provisions of article 19 of the convention for the pacific settlement of international disputes, concluded at The Hague, July 29, 1899, by which the signatory powers reserved the right of concluding agreements with a view to referring to arbitration all questions they should consider possible to submit to arbitration.
1 See editorial on “ The Integrity of China and the Open Door," 1, 954–63.
· For the successive steps in the negotiation up to and including the year 1907, see the editorial above referred to.
As in the various treaties to which the United States is a party, the conventional obligation to arbitrate is limited to a period of five years from the date of the exchange of ratifications (article 3). It has been said that the United States recognizes the equality of China; the truth of that statement is evident from the wording of article 1, which follows:
Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two Contracting Parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two Contracting States, and do not concern the interests of third parties.
It is to be noted that the contracting parties bind themselves to submit questions of a legal nature, or differences relating to the interpretation of treaties existing between them. It will be observed that the agreement to arbitrate is thus general and express, for difficulties concerning extraterritoriality are not excluded. In the draft convention of compulsory arbitration submitted to the first commission at the Second Hague Conference in 1907 extraterritorial rights and privileges were expressly excluded, but upon motion of China and the other nations in which extraterritoriality obtains, seconded by the United States, Germany, and Russia, the provision was stricken from the draft, notwithstanding the opposition of Great Britain. It may well be that extraterritoriality is a political question and, as far as it is not guaranteed by special treaties, may be excluded from the operation of the convention. And it may be also that the term “vital interests” is elastic enough to embrace extraterritoriality and thus exclude controversies involving extraterritorial rights and privileges from the treaty. It is a fact, however, that these rights and privileges are not specifically exempted and China is rightly and properly treated on a plane of equality with the other members of the family of nations.
The second article fixes the arbitral procedure, specifying the “special Agreement defining clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods to be fixed for the formation of the Arbitral Tribunal and the several stages of the procedure.” The final