failure of the authorities at Rock Springs, in Wyoming Territory, to keep the peace, or even attempt to keep the peace, or to make proper effort to uphold the law, or punish the criminals, or make compensation for the loss of property pillaged or destroyed, it may reasonably be a subject for the benevolent consideration of Congress."

In endeavoring to express his sympathy for the unfortunate families he names the very elements which, according to well-recognized principles of international law, make a nation liable for mob violence. The learned Chinese diplomat observed that if the view taken by our Secretaries of State as to the liability of the United States for mob violence should be insisted upon and adhered to by our government, then "China should, in due reciprocity and international comity, accept and practice the same principle." 1

1 For. Rel. 1886, pp. 101-168. In 1858 the government of the United States and China agreed upon a convention which provided for an adjustment of all claims of American citizens against China. Under an act of Congress two citizens of the United States were appointed to adjust the claims and award such sums as they might deem proper. The Chinese government requested that a Chinese be placed on the Claims Commission; but this proposition was rejected, and no opportunity was afforded the government of China to examine the evidence upon which the claims were based. It may be interesting in this connection to notice the nature of some of the claims that were allowed, not that they bear directly upon the question of liability for injuries committed in the interior, but because they illustrate how far our government has followed the "principles of international law and the usages of national comity."

Our government has always maintained that according to well-settled rules of international law, it is not liable to either foreign governments or individuals for damages resulting from the war operations of either its own troops or of foreign nations; and other nations have invariably followed this rule. But the American Commission allowed forty-one out of forty-eight claims for damages sustained by American citizens resulting from the bombardment of Canton by the British in 1856 and 1857, China paying $397,618.17 as “war damages." For. Rel. 1886, p. 145. In 1841 an American citizen was arrested by Chinese soldiers, during the war between Great Britain and China, under the mistaken belief that he was a British subject. He was thrown into prison and cruelly treated; but when it was discovered that he was an American citizen he was immediately released, with an apology from the Chinese authorities. He was imprisoned less than a day, but the claim of $31,600 was allowed by the Commission. For. Rel. 1886, p. 146. Another interesting case was the "Caldera" claim. The Caldera was a Chilian vessel, but the claim was made by New York underwriters. It appeared that the vessel encountered a severe typhoon on the first day out from Hong-Kong, and being badly damaged, she sought shelter in a bay. It was only with difficulty that the vessel could be kept from sinking. While the crew were engaged at the pumps they were attacked and overpowered by Chinese pirates who carried away a large part of the cargo. The vessel proved a total loss. It is expressly stipulated in the treaties of 1844 and 1858, that the Chinese government will not make indemnity for American vessels wrecked or plundered by pirates. Piracy was one of the risks against which the claimants insured; it would have been as reasonable to have demanded an indemnity for the damage caused by the typhoon. The Commis.

Whether the Chinese government could have successfully maintained that it was not liable for injuries done to property acquired in excess of treaty rights is, perhaps, an arguable question; but it may be safely said that, under similar circumstances, no Western nation would ever have failed to avail itself of this defence.1 Had the question of liability been raised it would seem, however, that the imperial government, by sanctioning the acts of the local officials, would be precluded from maintaining that the local authorities exceeded their powers and that the sale was invalid. It must of course be conceded that the unauthorized acts of the local authorities could not bind the imperial government, any more than our municipal officials could bind the federal government by granting rights in excess of existing treaties. But the relation between the national and the local government in China is very different from what it is in this country; in China the local officials are directly under the control of the imperial government, and the subordinate officers may be regarded, in a general way, as the official agents of the national government. The instances are numerous where the local and provincial officers have been subjected to severe corporal punishment by the imperial government for inju ries done to American citizens.2 The fact that for more than forty years there has been a universal custom of selling lands to foreign

sion allowed $54,566.14. Sometime later the claimants demanded of Minister Burlingame the further sum of $68,078.67. Mr. Burlingame stated that it was his opinion that "they were not entitled to one farthing. . . . After this award to learn that a still further claim should be put forward fills me with amazement." For. Rel. 1886, p. 146; For. Rel. 1865, part 2, p. 408. In discussing these claims Minister Cheng Tsao stated: "It results that the total amount received by claimants out of the indemnity fund paid to the United States by China, by virtue of the Claims Convention of 1858, was $643,994.42; of which amount it is believed that at least $600,000 was not warranted under a strict application of international law, as interpreted by the government of the United States, but was conceded by China as a mark of appreciation of the friendly attitude of the United States during the hostilities with Great Britain and France." For. Rel. 1886, p. 147.

1 Apropos of this question of liability, Minister Low, in discussing the rights of missionaries, stated: :

"There is no authority under the treaties for citizens of the United States to purchase land outside the limits of the treaty ports. If property be purchased and buildings erected thereon, and they should be damaged or destroyed by mob or other violence of the Chinese, the claim for damages would be an equitable rather than a legal one; and if the local or the imperial authorities should refuse to respond, upon the ground that the property was purchased in violation of treaty rights, it is extremely doubtful if our government would sanction any proceedings which might be instituted by its diplomatic or consular officers to collect it." For. Rel. 1873, p. 339.

2 For. Rel. 1881, pp. 266, 268; For. Rel. 1891, p. 73; For. Rel. 1895, pp. 103, 151, 157, 162; For. Rel. 1897, p. 68.

ers with the tacit acquiescence of the imperial government tends to prove that the acts of the local officials were authorized by the national government; in fact, the imperial government has repeatedly directed the provincial authorities to aid the missionaries in procuring land, and also commanded that proper protection be given them.1

It has been suggested by one of our ministers that the attitude of the Chinese government has been such that it may be considered as equivalent to an actual recognition of the right to reside in the interior.2 It is extremely doubtful if this proposition can be maintained. The fact that China has granted to foreigners greater rights than they are entitled to under the treaties does not in itself create a positive right to continue to acquire rights other than those granted by treaty. There are instances where nations have not insisted on the fulfilment of treaty obligations, and even after the elapse of a long period of time, they have changed their policy and successfully enforced their rights under the treaties. It is clear, however, that a foreigner may, with the permission of the government, acquire privileges not authorized by treaties, and the government would be estopped from saying that he acted in violation of his legal rights, or from depriving him of rights thus obtained. But that would be no ground for asserting the claim that other foreigners are entitled to acquire similar rights; for while a government may grant to certain individuals such rights as it may see fit to concede, it does not necessarily follow that a right to acquire such rights is thereby created in favor of the whole world. Where there is a general custom of granting certain privileges to the citizens of a particular nation, other countries may rightfully claim that, under the most favored nation clause, they are entitled to the same rights; but that is, of course, an entirely different proposition.

The right of extra-territorial jurisdiction as exercised by foreign nations in China is an element which has greatly affected the right to reside in the interior. For the fact that foreigners are amenable only to the consular tribunals of their own country makes it necessary to restrict their residence to the open ports where consuls are stationed. Our citizens in China are not noted for their fair dealing with the Chinese, and our consular tribunes do not always ren

1 For. Rel. 1881, p. 271; For. Rel. 1887, p. 164; For. Rel. 1888, pp. 294, 295; For. Rel. 1895, p. 162.

2 For. Rel. 1882, p. 141.

der decisions with perfect impartiality; it is therefore not at all surprising that China should object to an extension of the system throughout the empire.

But the reasons for restricting other foreign classes to the open ports do not apply with equal effect to the missionaries. And it is perhaps because the principles of the Christian religion are recognized by the Chinese government, "as teaching men to do good, and to do to others as they would have others do to them," that the missionaries have not only been permitted to exceed the limitations prescribed by the treaties, but they have also been granted, in recent years, new treaty rights not accorded to any other class of foreigners. In an amendment to the French treaty in 1895 the French missionaries were granted certain important rights and privileges in the interior. Under the most favored nation clause our missionaries are, of course, entitled to the same rights and privileges. It has been the custom of our government to insert in its official publications copies of all treaties between China and other nations; but, strangely enough, the amended Berthemy convention has never been published. The writer recently applied to the Department of State for a copy of this treaty. In reply the Department stated that there was no copy of the treaty in Washington; that in accordance with instructions from the government the American Ambassador in Paris had consulted M. Delcassé, Minister of Foreign Affairs, regarding the treaty, but that because of reasons based on policy the French government had declined to publish it. Being unable to procure a copy of the treaty, the Department sent a copy of a document which appears in the official publications of the French diplomatic correspondence. This docu

1 The Hon. C. W. Bradley, LL. D., in one of his decisions used the following language: "It is a mortifying fact that were a balance to be struck between the aggregate losses suffered by Americans from Chinese pirates, Chinese thieves, and debtors, on the one hand, and on the other, the injuries inflicted on Chinese merchants, tradesmen, compradors, and citizens in the non-payment of debts honestly due them by American merchants, agents, shipmasters, mariners, etc., we should find that balance to our debt in a ratio of full 90 per cent. I speak advisedly. On the score, too, of official fidelity and punctuality in fairly carrying out their treaty obligations as against their own countrymen, I apprehend that the consular officers of America and Europe have been guilty of as many and as serious laches as can be produced against the native magistracy of China in their official shortcomings toward foreigners. Such, at least, is the result of my observation. Due provision is also made by the Chinese code of statutes and ordinances for the punishment of malfeasance on the part of officers. . . . These statutes cover the whole ground of official torts, and are frequently enforced with exemplary impartiality and vigor." H. Ex. Doc. 29, 40th Cong 3d Sess. p. 176.

ment, which is an official communication to the French government from its diplomatic representative in Peking, explains something concerning the nature and substance of the amended treaty.1 By virtue of the amendment the French missionaries are given the right to purchase land and reside anywhere in the interior. The convention provides that the deeds taken by the missionaries shall be in the name of the missionary society or church which buys the land. (For. Rel. 1897, p. 62.) It seems that until very recently there was in force in certain parts of the empire a regulation which had the effect of adding a new clause to the treaty. It required every Chinaman, before selling any property to the missionaries, to obtain from the local authorities permission to make the sale. The French Legation protested against the regulation, and the Tsung-li Yamen caused a proclamation to be issued which stated that the vendor shall neither be obliged to inform "the local authorities of his intention to sell, nor to ask their authorization in advance." According to the terms of the official letter quoted in the note below1it would seem that the additional rights granted by the amended treaty are restricted to the Catholic missionaries exclusively; but whether that is true or not, it does not appear that the Chinese government has, as a matter of practice, ever made any distinction between Catholics and Protestants.

1 M. GERARD, MINISTRE DE LA REPUBLIQUE FRANÇAISE À PEKIN, À M. HANOTAUX, MINISTRE DES AFFAIRES ÉTRANGÈRES.

PEKIN, le 30 avril 1895.

J'ai reçu la dépêche par laquelle Votre Excellence a bien voulu répondre à la suggestion que je lui avais soumise concernant l'opportunité de donner à la Convention conclué le 20 février 1895 entre M. Berthemy et le Tsong-ly-Yamen, une consécration et une autorité nouvelles. Cette Convention, que concerne l'acquisition à titre collectif, par les missions, de terrains et de maisons dans l'intérieur du pays, se recommandait à notre attention, d'abord, parce que la plupart des affaires récentes sont des contestations en matière d'acquisition d'immeubles, ensuite parce que la dite conven tion semble n'avoir été portée à la connaissance des Vice-Rois qu'avec des additions et commentaires qui en dénaturent le sens.

Un règlement adressé en 1865 aux Vice-Rois par le Surintendant du commerce des ports du Nord a, en effet, ajouté à cette Convention une clause aux termes de laquelle tout Chinois doit, avant de vendre aucune propriété aux missionaires, demander aux autorités locales une autorisation préalable, qui, en fait, est d'ordinaire refusée. La Légation a souvent protesté contre ce règlement; le Tsong-ly-Yamen a admis le bienfondé de ses réclamations, notamment dans des lettres du 5 février 1882 et du 31 aout 1888, dont j'ai donné lecture aux Ministres. Et cependant la Convention, dans la plupart des cas, n'est pas observée, ou plutot les autorités locales continuent à y adjoindre l'obligation de l'autorisation préalable, qui en est comme l'abrogation.

J'ai eu la satisfaction d'annoncer il y a quelque temps à Votre Excellence que mes efforts avaient abouti, et qu'après une série de pourparlers et un échange de dépêches