EARLY in the month of January, 1930, a British naval officer driving an automobile in the city of Hankow, China, ran over a Chinese coolie riding either a motor cycle or a bicycle, reports differ as to which. Anyone who has ever driven an automobile in China will be ready to state that Chinese bicyclists are erratic and nerve- racking pests on the public highway, but the incident jumped into startling prominence for other reasons than this.
During 1929, the Chinese government had been asking the treaty powers for abolition of extraterritoriality, for the recession of the jurisdiction over treaty-power nationals from the consular courts. This in spite of the plain position of the British government in the Shanghai treaty of 1902, at the Washington conference in 1921, and at Peking in 1926, that Britain was not yet ready to relinquish her treaty rights. On December 28, 1929, the Chinese government issued a “mandate” declaring extraterritoriality abolished; but this action was unilateral and has not been agreed to by the treaty powers concerned.
The Hankow incident has been looked upon as a first test of the effectiveness of the Chinese government’s declaration. In response to a prompt demand by the British consul, the British naval officer, who had been detained, was expeditiously released. There has been an inclination to look upon this result as definite proof that the Chinese “mandate” was a mere face-saving pronouncement and that there has actually been no abolition at all.
It is not inappropriate to consider if this is actually the case. Indeed, it appears that members of military or naval forces stationed in China cannot furnish any true test at all. Some of these troops and naval personnel, from Peking to the sea, are in China in conformity with the International Protocol of 1901. To this protocol, China agreed. Others have been there many years, in many treaty ports and on navigable rivers far inland, and it must be assumed that Chinese consent to their being stationed within her boundaries, is tacit or implied.
Thus we arrive at the situation set forth in the famous case of the Schooner “Exchange” v. McFaddon when Chief Justice John Marshall said:
A public armed ship constitutes a part of the military force of her nation; acts under the immediate and direct command of her sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which such vessel enters a friendly port, may reasonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality. “It is impossible to conceive,” says Vattel, “that a prince who sends an ambassador or any other minister can have any intention of subjecting him to the authority of a foreign power.” Equally impossible is it to conceive, whatever may be the construction as to private ships, that a prince who stipulates a passage for his troops, or an asylum for his ships of war in distress, should mean to subject his Army or his Navy to the jurisdiction of a foreign sovereign.
What then of the foreign troops stationed at Tientsin, or the legation guards in Peking? “It is well settled,” said the Supreme Court, “that a foreign army permitted to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.” This line of thought, initiated by John Marshall, quoted with approval in the Coleman case, in Dow v. Johnson, and in Tucker v. Alexandra ff, is not, however, absolutely clear to the point at issue. Coleman v. Tennessee turned upon the law of belligerent occupation, and so did Dow v. Johnson. Tucker v. Alexandroff depended upon an existing and effective treaty, and interesting as is its summary of foreign troops permitted to enter the United States as organized units, it is of little help save as dictum, for it very clearly states: “In none of these cases did a question arise as to the immunity of foreign troops from the territorial jurisdiction.” Indeed, “Exchange” v. McFaddon was also something quite different, for all that Marshall really decided was that a foreign man-of-war could not be libeled for possession in a friendly country; the question concerned solely the property of a friendly sovereign, not the personnel under his control.
The general idea that an armed force represents its sovereign and should not be interfered with by officials of a friendly country in which its temporary presence is permitted by consent explicit or implied, seems at first thought to be sound. There appears to be some analogy between such a possible immunity and the immunity enjoyed by ambassadors, ministers, their secretaries, retinues, and servants—both being considered inviolate agents of a foreign sovereign.
Let us see if such an immunity, entirely aside from the question of extraterritoriality, exists in American conceptions of international law. What will be our conception if an American military or naval officer finds himself in the same predicament as that in which the British officer found himself in January. We shall find little or nothing on the subject, even though an almost pertinent case arose at the time of the Boxer rebellion. In 1900 a trooper of the 6th Cavalry, ordered to Peking to protect the legations and help suppress an armed uprising against foreigners, shot and killed a fellow- trooper. He was court-martialed, convicted, and sent home to Leavenworth for life imprisonment in the penitentiary—all under the 58th Article of War giving courts- martial jurisdiction over murder cases among military personnel “in time of war, insurrection, or rebellion.” It was assumed that “insurrection or rebellion” in the article referred to uprisings against the home authorities in the United States, and so recognized by presidential proclamation. There was actually no “war” declared “against either the government of China or the Boxer element of that government.” The offending soldier had been tried in accordance with the personal jurisdiction of military law. There was apparently no thought of turning him over to unfriendly Chinese tribunals for trial. When his case was taken into our federal courts, he was actually in the United States. It was a delicate question. Should the military be permitted to do their own house cleaning, or should a convicted murderer be let loose on a writ of habeas corpus? The court refused to be bound by the idea that the political department of the government declares war or not and the courts are bound by such declaration or nondeclaration. It turned rather to Justice Grier’s method in the Price Cases and decided that “there prevailed in China a condition of war within the spirit and intent of the 58th Article of War.”
It is not for us to say how far the court was influenced by the circumstances of the case. It was stated that among our troops in a foreign country to protect our citizens, there must be power to enforce soldierly discipline and ordinary order, and to protect those of our citizens who make up the rank and file of those troops. Hence this case is not analogous to the British naval officer at Hankow.
In Cuba, during the military occupation following the Spanish-American War, there occurred another case of a somewhat similar nature. An artillery soldier of the United States killed (allegedly in self-defense) a “desperate character” and the Secretary of War asked if trial by court-martial could be had under the 58th Article of War, or if trial must be by the civil courts of Cuba. The “desperate character” was a teamster in the military service and the killing took place on premises occupied by United States troops. The Attorney General advised, that there was no “state of war” in Cuba, since the treaty of peace with Spain had been signed, and we were not at war with Cuba, and therefore the court-martial could not try the soldier for murder. Cuba, he said, might waive the right to try the offender.
The supposed exemption of the Army, even if it were granted by Cuba, would be granted to the United States as a nation for our national purposes. It would carry with it no individual right of Private York. Accordingly the United States would be free to waive it or insist upon it without consulting Private York. And in this the President would represent them.
Now it happens that the occupation of Cuba by our forces was not belligerent occupation, like those in the Coleman and Dow cases, but a friendly one. It is true that Cuba was a separate nation. But it also happened that, pending the establishment of Cuban sovereignty in accordance with the self-denying ordinance, “the President [was] exercising the governmental powers of the people of Cuba” and would not foolishly grant or demand exemptions to or from himself. There was no question of national dignity involved or of interference. Indeed, said the Attorney General, “we cannot presume in the case of bodies of troops stationed in Cuba for the purposes for which ours [were] there, that to try a soldier for murder will defeat the object of the presence of the troops. If there is to be any presumption, such a trial would rather tend to further that object.”
A demand that a soldier be turned over to civilians for trial for capital offense must, in ordinary circumstances in the United States, be instantly complied with by military commanders, under the 59th Article of War. This is in accord with ancient British and American practice which regarded soldiers as not exempt from civil processes or jurisdiction, a practice maintained in order to prevent local misbehavior by home troops among civilian populations. But of course, such a demand could not properly be made in distant Cuba, for the intent of the 59th article was to protect the home localities against soldierly oppressions and depradations, and that only. The Attorney General therefore considered that the soldier was not required to be delivered to the Cuban courts, but it was nevertheless proper to permit such courts to try him. And we readily realize that in 1900 if he were not tried by Cuban courts, he would not be tried at all. It is also interesting to note that the opinion made much of, and possibly took for precedent, the British practice of permitting British soldiers to be tried in newly occupied territories by civil courts under British control just as the Cuban courts were under American control at the time of occupation.
Although these cases of Private Hamilton and Private York are not exactly to the point, they at least throw light on the subject. In the one case, the civil courts were under American and in the other under foreign control. And the Hamilton opinion quoted Coleman v. Tennessee to say that “there would be something incongruous and absurd in permitting an officer or soldier of an invading army to be tried by his enemy, whose country he had invaded.” It also made material the fact that the United States was in China in 1900 “prosecuting its rights by force of arms.”
However, extraterritoriality aside, it is now perfectly proper for military and naval offenders against civil, as distinct from military, laws, to be tried by courts-martial in foreign countries.
In China today there is antiforeign agitation, including agitation for the withdrawal of foreign troops. There is diplomatic argument upon the subject. But the troops are still there. And they are there in exactly the same status as they were in 1900, protecting citizens and property “by force of arms” even though no hostilities have ensued, protecting by their ever-present threat of force though without actual use of force. It is constructive force by which they accomplish their object.
They are present in China as parts of an armed organization maintained at its allotted strength, stationed at determined places, and assigned specific duties, in accordance with the will of the foreign governments which they represent.
The British publicist, W. E. Hall, writes:
There can be no question that the concession of jurisdiction over passing troops to the local authorities would be extremely inconvenient; and it is believed that the commanders, not only of forces in transit through a friendly country, but also of forces stationed there, assert exclusive jurisdiction in principle in respect of offenses committed by persons under their command, though they may be willing as a matter of concession to hand over culprits to the civil power when they have confidence in the courts, and when their stay is likely to be long enough to allow of the case being watched. The existence of a double jurisdiction in a foreign country being scarcely compatible with the discipline of an army, it is evident that there would be some difficulty in carrying out any other arrangement.
There is a valid principle, and one in conformity with the usual military mind, desirous of doing its own house cleaning and of protecting itself from civil interference. It is even valid in its suggestion that offenders might be tried in local courts when the military “have confidence in the courts.”
Hall also says:
The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction. If a ship of war is abandoned by her crew she is merely property; if members of her crew go outside the ship or her tenders or boats they are liable in every respect to the territorial jurisdiction. Even the captain is not considered to be individually exempt in respect of acts not done in his capacity of agent of his state. Possessing his ship, in which he is not only protected, but in which he has entire freedom of movement, he lies under no necessity of exposing himself to the exercise of the jurisdiction of the country, and if he does so voluntarily, he may fairly be expected to take the consequences of his act.
This contention of Hall is paralleled by a pronouncement by Secretary of State Randolph in 1794, when he said:
The officers of a vessel of war belonging to a foreign nation cannot set up extraterritoriality when unofficially on shore in a port in whose harbor their vessel is temporarily moored.
If our British naval officer in Hankow were driving his own automobile for pleasure, it would therefore be something different from his driving an official automobile on official business. And how shall we look at the foreign garrisons, the British at Tientsin or Shanghai? Some of the officers and soldiers live outside of the compounds where the troops are barracked. If they are on their way to roll call or drill formations, they are “on duty;” but if they are merely progressing towards a country club or towards a motion picture theater, are they not “off duty” and “unofficially” and therefore in the same status as other alien residents in those cities?
It is to be doubted if we can make such a distinction. The essential point is that the individual is a member of armed forces stationed at a certain place for duty—not at all to be always on duty, but at least to be always available for duty. They are not in any different status from that of a lonely lighthouse keeper. He has his hours for sleep, those for eating, possibly even hours for recreation. But he is always at his post of duty. Just so is the soldier, ordered to and held at a distant over-seas garrison, not to be always fighting, but to be at hand and prepared if fighting should be necessary. Interference with his liberty by local tribunals of the foreign country where he is stationed with implied or explicit consent, is interference with the objects and methods of the sovereign state which he serves.
In the second volume of Moore’s Digest of International Law, there will be noted a number of instances where sailors from foreign men-of-war get into trouble ashore, and the general impression gained from reading that section is that, although there is nothing strictly provided to cover such cases in international law itself, yet the practice has been such as to indicate an exemption from local jurisdiction. It is entirely possible to assume that the practice has been due to friendliness and to comity, that the surrender of offenders for trial by their own military tribunals has been a gracious courtesy practiced towards official armed units of other countries. Perhaps it is also possible to trace a gradual settling of this practice into custom and, as Dr. Moore has said with regard to the question of nonconfiscation of enemy property, to say that “the modern usage of nations” has “become