cates with the Bureau. The latter summons the defendant and listens to his side of the case. Dispatches fly forward and backward between the consul and the Bureau till some sort of agreement is arrived at. In criminal cases, if the defendant is arrested in the settlements, where no mixed courts have been established, the foreign police prepares the evidence and he is despatched to the nearest district magistrate (with or without the intervention of the Bureau), who inflicts the required punishment. Whenever there is dissatisfaction with the settlement of the case, the consul appeals to the Taotai, or to the viceroy, or even to Peking. In Shanghai the Bureau of Foreign Affairs is the court of appeals from the decisions. of the Mixed Court, when the Shanghai Taotai sits as judge, with the consul as assessor. It is also the building where the Taotai receives the calls of the consuls and where he extends social amenities on such occasions as the Emperor's birthday, etc.

It is in the interior of China, hundreds of miles from the nearest consulate or foreign community, that this principle of extra-territoriality, which China granted without being aware of the difficulties that would be involved in its execution or of its being an infringement on her sovereign rights, works with peculiar hardship on the officials and the people. Removed from all fear of the law and caring little or nothing for the good opinion of his neighbors, the foreigner is often tempted to behave in a manner that he would not dare to do elsewhere. Minor offenses in such a case have to be overlooked by his victims, and in serious crimes, the most the local authorities can do is to despatch him promptly under an escort of soldiers to his nearest consul, who after all the expense and trouble taken to transport the prisoner, the plaintiffs and the witnesses may or may not punish him. Sometimes, the indignation of the populace gets beyond control, resulting in an application of "lynch law." Such a course is now, however, rarely attempted for reasons which need not be mentioned here. It is not entirely without cause, therefore, that foreigners are not welcomed in the interior either as residents or as travelers. Fortunately, the majority of such foreigners are either missionaries or travelers. The former are as a rule men of education and character (Protestants are referred to here), who conduct themselves with con

sideration and restraint, while the latter are few and far between and to the relief of all concerned, do not tarry long at any one place.

It is not possible to omit a passing allusion to the interference of missionaries in purely Chinese litigation. The subject is a delicate and complicated one. Missionaries claim, and sometimes justly, that their converts are being persecuted by the officials or their neighbors on account of their change of belief, while the official tells the nonChristian litigants that he has decided a case against them, not that they have been in the wrong, but that if he decided according to the merits of the case, the foreign missionary would appeal to the Governor or to Peking, and he would suffer. It is gratifying to note that the Protestant missionaries have agreed to make it their policy to interfere as rarely as possible in litigation in which converts are involved, and only when they have made full investigation and possess perfect knowledge of the facts that they would carry a case before the officials. Increased intelligence, both official and popular, in dealing with such cases, the rise of a better class of converts and the growth of the daily press are further correctives to put a stop to one of the most irritating international problems that China has had for

many years.

While theoretically a Chinese has always a mode of redress against a foreigner by suing him before his consul, there are in practice many difficulties in the way. Granting that the consul is an upright and honest official, which is not always the case, he is very likely a friend of the accused (in small communities one cannot be fastidious. in choosing friends). Then there is the language difficulty, the differences in court procedure, the lightness of Western compared with Chinese punishment, and the intricacies of Western law, which are very bewildering to a Chinese plaintiff. A very serious objection and a reasonable cause of complaint is the practice of some consular courts to send prisoners charged with major offenses to their home lands for final trial and punishment. As a rule, very few hear further of such cases, and the report is circulated and believed that such criminals go unpunished. This practice should be abandoned, for it does injustice to both sides, damaging the good name of the foreign country and robbing the Chinese of the satisfaction of knowing that punishment has been meted out to the guilty.

It is recognized by our government that the management of foreign affairs in China constitutes its most important and most difficult work, and to simplify matters and to increase efficiency, it proposes to appoint commissioners of foreign affairs for each province, who shall supersede the regular administrative officers, already burdened with their other duties. These commissioners, assisted by inferior officers to be located at each treaty port and each missionary center, will be made responsible for the settling of foreign questions, and will be in direct communication with and under the absolute control of the Waiwu Pu.

In the commercial treaties recently negotiated with Great Britain, the United States and Japan, the following article was incorporated:

China having expressed a strong desire to reform her judicial system and to bring it into accord with that of Western nations, Great Britain (United States or Japan) agrees to give every assistance to such reform, and she will also be prepared to relinquish her extraterritorial rights when she is satisfied that the state of Chinese laws; the arrangement for their administration, and other considerations warrant her in so doing.

To bring the article in question into effect as soon as possible, China is having her laws remodelled and her prison system ameliorated. The judicial functions are gradually being removed from the sphere of administrative officers, and courts, based on the principles of the West, have been established in some of the more important cities. With the abolition of the practice of the principle of extraterritoriality, the administration of foreign affairs in China will be greatly simplified and much more friendly relations will exist between our people and the foreigners.

WEICHING W. YEN.

THE INFLUENCE OF THE LAW OF NATURE UPON INTERNATIONAL LAW IN THE UNITED STATES1

The political philosophers of the eighteenth century might have been surprised if told that their favorite doctrine of natural rights was the intellectual successor of certain theories of the Roman law and of the scholasticism of Saint Thomas Aquinas. Yet the "state of nature," which filled so large a place in the discussion of natural rights, has been called "an exaggerated perversion of what, in traditional system, was quite a subordinant point." 2 From Locke to Hooker, and back through the scholastic philosophy, the germ of natural rights has been traced to the jus naturæ and the jus gentium of the Roman law. Grotius and his successors preserved the tradition in another and more direct line. The continuity of Grotius with the doctrine of the Roman law was complete. "The law of nature," said Holland, "is the foundation, or rather the scaffolding, upon which the modern science of International Law was built up by Gentilis and Grotius. The change in the meaning of jus gentium made by Grotius and his successors, and the influence which the jus naturæ had in forming the new conception of the law of nations can only be referred to here.

3

There has been much confusion attendant upon the discussion of this change and influence, and there is no desire on the part of the writer to make what was once confusion again confounded.5

It will be the purpose of the present paper to consider the in

1 A paper read at the meeting of the American Political Science Association, held at Richmond, Virginia, December 31, 1908.

2 Sir Frederick Pollock, Note G to his edition of Maine's Ancient Law. Carlyle, Mediæval Political Theory in the West, I, Chap. 9.

3 Pollock's Maine's Ancient Law, Note H.

Jurisprudence, 10th Ed., 38.

5" Mr. Bryce's recent essay on the Law of Nature should be read by all students of legal history," says Sir Frederick Pollock, in his note (page 387). To it may be added the latter's article upon the same subject in the Journal of Comparative Legislation, 1900.

fluence of the Continental text-writers upon the early American conceptions of the law of nations. The more one looks for definite statements by the revolutionary statesmen and their successors of principles drawn wholly from the law of nature, the more one loses the trail, and, indeed, one's sense of direction. All that can be done. is to point out the extent to which the text-writers were read and used, to attempt to see how far their habits of thought and expression were adopted in America, and, finally, to single out certain counterinfluences which made against any large adoption of the law of nature in America.

The case of Triquel v. Bath (3 Burrows, 1478) is frequently referred to for the purpose of showing how far the law of nations is a part of the law of England. In that case, decided in 1764, Lord Mansfield (on the authority of Lord Holt) expressed the dictum that "the law of nations was to be determined from the practice of nations and also from the authority of Grotius, Barbeyrac, Bynkershoek, Wicquefort and others, there being no English writer of prominence upon the subject." It will not do to press this frequently quoted dictum too far as regards the authority of these Continental writers. A recent English case thus comments upon Triquet v. Bath: "The expressions used by Lord Mansfield * ought not to be construed so as to include as part of the law of England opinions of text-writers as to which there is no evidence that Great Britain has ever assented, and a fortiori, if they are contrary to the principles of her laws as expressed by her courts." 6 On the other hand, Chief Justice Marshall held distinctly in 1815 that the law of nations was a part of the law of the land, save, when, internally, a federal statute governed. Long before that time state and federal courts had been deciding cases, not according to English precedent, but according to what the judges held specifically to be the law of nations.

* *

It has been stated that "the first half of the eighteenth century was not a time of special growth or importance in the history of International Law." 8 If, however, it be remembered that this half

6 West Rand

1:217.

Co. v. King, L. R. 1905, 2 K. B. 391; see this JOURNAL,

7 The Nereide, 9 Cranch, 388.

• Professor Woolsey in Two Centuries' Growth of American Law, 494.