"What are 'the laws of the United States' referred to so frequently in these quotations?" is the question sought to be answered as follows in one 26 of the earliest cases presented to the writer after he had assumed charge of the Court: "Not the treaties for they are mentioned separately; hardly the Constitution for it has been declared" to have no extra-territorial operation; certainly not state legislation; principally, therefore, the Acts of Congress then or subsequently in force. And their extension results quite independently for the original purpose of the acts themselves. Thus Congress may enact a law for a limited area under its exclusive jurisdiction, such as Alaska or the District of Columbia; by its terms it may have no force whatever outside of such area; but if it is necessary to execute such treaties' (with China) and 'suitable to carry the same into effect' it becomes operative here by virtue of the Act of 1860 above quoted. Such we understand to be the doctrine announced by the Court of Appeals in a leading case." This last was a prosecution for obtaining money under false pretenses and in upholding the lower court's jurisdiction of such a crime the appellate tribunal observed: "It is true, there is no general statute applicable to every state in the Union, making this an offense against the United States; nor could there be, in view of the fact that under our system of government the right to punish for such acts committed within the political jurisdiction of the state is reserved to the several states. But in legislating for territory over which the United States exercises exclusive legislative jurisdiction, Congress has made the act of obtaining money under false pretenses a crime. "In view of the legislation of Congress to which we have referred (the acts relating to Alaska and the District of Columbia, and the statute of July 7, 1898), our conclusion is that obtaining money or goods under false pretenses is an offense against the laws of the United States, within the meaning of the statute conferring jurisdiction upon the United States Court for China.""9 Though the laws there involved were criminal ones the fundamental basis of the decision applies equally well to civil laws which have since been treated by the United States Court for China 30 as extended here. "For there can be no half way adoption of that doctrine; it includes all such laws or none. It cannot logically be restricted to any particular class of acts. It is just as applicable to civil laws as to criminal; just as necessary in respect to corporations as to procedure."31 It is true that the phrase "law of the United States" as used in one paragraph of that section of the Judicial Code 3 relating to appeals has been construed as not 26 U. S. v. Allen, U. S. Court for China, No. 89. 27 In re Ross, 140 U. S. 433, 35 Law ed. 581. 28 Biddle v. United States, 156 Fed. Rep. 759. 29 Biddle v. United States, 156 Fed. 759. 30 Cavanagh t. Worden, No. 313. 31 United States ex rel. Raven r. McRae, No. 586, Millard's Review, I, 9. 32 Sec. 250; 36 U. S. Stats. at Large, 1159. including an Act of Congress for the District of Columbia." But the ratio decidendi was the declared purpose of the paragraph to limit appeals" and it was conceded that the same phrase in another paragraph might be construed differently." In fact, it had been so construed in an earlier case which was not overruled by those above cited. Moreover, in a decision later than any of them the Supreme Court in construing a similar statute" regulating appeals from the Philippines declared the Philippine Tariff Act, which applied to the archipelago alone, "a Statute of the United States." The doctrine of the Court of Appeals would seem, therefore, to be quite consistent with that of the Supreme Court It appears to be settled, then, that the phrase "laws of the United States" as used in the legislation first above quoted includes all applicable Acts of Congress regardless of the locality for which they were intended originally. This rule provides for American Courts in China a mass of legislation without which they would be sadly handicapped; for the general Acts of Congress contain little concerning the subjects with which those Courts are most called upon to deal, such as crimes, domestic relation, contracts, etc. It happened, however, that, shortly before the establishment of the United States Court for China, Congress had enacted for various jurisdictions a series of fairly satisfactory codes and statutes, covering these and kindred subjects and which, by the rule above stated were rendered available to said Courts." Where two or more of such Acts cover the same subject and are equally suitable, a rule of statutory construction as old as the Twelve Tables" requires that the latest enactment be applied. Moreover, although, Alaska was provided in 1913 with a legislature of its own, Congress will doubtless continue to legislate indefinitely for the District of Columbia and a fair supply of new legislation may be expected from that 33 American Security, etc. Co. v. District of Columbia, 224 U. S. 491, 56 Law. Ed. 856, 32 Sup. Ct. 553; Washington, etc. R. Co. v. Downey, 236 U. S. 190, 59 Law Ed. 533, 35 Sup. Ct. 406 American Surety Co. v. American Fruit Product Company, 238 U. S. 140, 59 Law Ed., 1238; 35 Sup. Ct. 828; American Security, etc. Co. v. Rudelph, 38 App. Cas. (D. C.) 32. 34 American Security, etc. Co. v. District of Columbia, 224 U. S. 491, 56 Law. Ed. 856 32 Sup. Ct. 553. 35 "Of course there is no doubt that the special act of Congress was in one sense a law of the United States. It well may be that it would fall within the meaning of the same words in the third clause of the same section: 'Cases involving the constitutionality of any law of the United States'." Id., Cf. American Surety Co. v. American Fruit Product Co., 238 U. S. 140, 59 Law Ed. 533, 35 Sup. Ct. 406. 36 Parsons v. District of Columbia, 170 U. S. 45, Law. ed. 37 36 U. S. Stats. at Large, Chap. 1369, Sec. 10. 38 Gsell v. Insular Collector, 239 U. S. 93; affirming, 24 Philippine, 369, which in turn affirmed the decision of Lobingier, J., in 1 Philippine Law Rev., 229-233. 39 Act of March 3, 1899, 30 U. S. Stats. at Large, 1253 et seq. (Criminal Code for Alaska.) Act of June 6 1900, 31 U. S. Stats. at Large, Ch. 786 (Civil Laws for Alaska). Act of March 3, 1901, 31 U. S. Stats. at Large, Ch. 854 (General Code for the District of Act of July 1, 1902, 32 U. S. Stats. at Large, Ch. 1369 (Organic Act for the Philippines but, 40 XII, 6; 36 Cyc. 1130; Cavanagh v. Worden, No. 313, Millard's Review, V. source.40-a Besides extending other legislation Congress has also legislated directly for China. Thus in 1887 passed an act penalizing the opium traffic by Americans in China and in 1915 another act regulating the practice of pharmacy by Americans in that country. The statutory equipment of American Courts in China is therefore, on the whole, about as complete as that of most courts. 2. Unwritten Law In any jurisdiction there are, of course, many subjects not covered by legislation and these lacunao were early provided for in extraterritorial countries by enacting that "in all cases where such laws are not adopted to the objects, or are deficient in the provisions necessary to furnish suitable remedies, the common law, including equity and admiralty, shall be extended in like manner over such citizens and others in the said countries."41 The "common law" here specified has been "interpreted to mean those principles of the common law of England and those statutes passed in aid thereof, including the law administered in the equity, admiralty and ecclesiastical tribunals, which were adopted to the situation and circumstances of the American colonies at the date of the transfer of sovereignty as modified, applied and developed generally by the decisions of the State Courts and by the decisions of the United States courts, and incorporated generally into the statutes and constitutions of the States." 3. The Rule Making Authority. Finally, as supplementing all of the above, the Act of 1860, following closely upon that of 1848, further provided that "if defects still remain to be supplied, and neither the common law, including equity and admiralty, nor the statutes of the United States, furnish appropriate and suitable remedies, the ministers in the said countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies."'43 In exercise of this authority the Minister of China, prior to 1906 promulgated various "Consular Court Regulations" and these, though recognized in part as "gravely defective", have been given force in China even over Acts of Congress. 40-a Eg. the Negotiable Instruments Law (U. S. Stats. at Large, Ch.) and other products of the Uniform Laws Conference. 41 Act of Congress of June 22, 1860, 12 U. S. Stats. at Large, p. 73, Ch. 179, Sec. 4. 42 U. S. v. Biddle (U. S. Court for China) American Journal of International Law, I, 793, 796; reversed on another point, 156 Fed. 759. 43 12 U. S. Stats. at Large, Ch. 179, Sec. 4. 44 Reprinted in Hinckley, American Consular Jurisdiction in the Orient, pp. 226-236. 45 United States v. Engelbracht (U. S. Court for China, Oct. 25, 1909) American Journal of International Law, III, 735. A communication to the minister from the Department of State in 1917 announces "that the department is clearly of the opinion that Section 5 of the Act of June 30, 1906," should be construed as affecting a transfer of the authority to modify and supplement existing rules of procedure from the minister to the United States Court for China." Here then we have the "Judicial Superintendent" in fact if not in name, with not only "the power and duty to inquire into each and every" important act of the primary courts, and to require reports from them but also to frame the rules by which all these courts shall operate. When it is remembered that American jurisprudence in China is a new field, and that these "rules of procedure" may be made to cover nearly the whole subject of remedial law, it will be seen that the possibilities involved in this idea of superintendency are very extensive. Acting under this authority the writer has already promulgated Rules for Admission to practice in all of these Courts" and has sent out for comment and suggestion before promulgation, a draft of proposed rules of evidence" which aim to cover in brief space the whole field of that subject. So far as the growing business of the Court will permit it is the writer's intention to follow these with successive drafts of rules on various procedural subjects until the whole field of remedial law is completed. The full realization of that plan may have to be deferred for some time but it will be pursued as steadily as conditions allow; for the opportnity is unique and the task inviting. 45 See ante, p. 9. 47 Millard's Review, IV, 68. 43 Id., I, 164-168, 192-196; American Bar Association Journal, IV, 218, 242. PHILIPPINE LAW JOURNAL Published monthly, August to April inclusive, during the academic year, by the alumni and students of the College of Law, University of the Philippines FACULTY ADVISORY COMMITTEE Jorge Bocobo, Dean of the College of Law. Quintin Paredes, Professorial Lecturer on Criminal Law. Enrique Altavas, Lecturer on Land Registration and Mortgages. SEPTEMBER, NINETEEN HUNDRED AND EIGHTEEN NOTE AND COMMENT LAW COURTS IN CHINA Under this caption Warren R. Austin, Esquire, Attorney for the Siemss-Carey Company formerly of Peking, contributes an article to the May number of Case and Comment, a legal magazine published by the Lawyers Co-operative Publishing Company at Rochester, New York. In closing Mr. Austin refers as follows to the United States Court for China, to which he was admitted a little more than a year ago: "This novel court, the sanctuary of American defendants, is more than an arbiter of particular controversies, more than an extension of the American system of jurisprudence beyond the limits of the United States, to the remotest lands from us; it is incidentally an international forum, which, by the justice and equity of its decisions, equally applied to foreign plaintiff of whatever nationality, and by the exposition and enforcement of laws having their source and sanction in a government knowing no sovereign but the sovereign people, spreads abroad the liberty we ourselves enjoy, increases the confidence and respect of foreign nationals-especially the Chinese-in the institutions of a free government, and invites the young Chinese onward in their struggle to throw off the despotism of Old China which still lives, though the Government is called a Republic, and continues to express itself in part through the office of the District Magistrate.”—C. S. L. |