years, excluded all but a few Dutch walled in and guarded at Nagasaki. Other Asiatic nations and tribes breathed the same spirit and pursued the same policy. In short, while the spirit of Christendom was brotherhood, the spirit of the rest of the world was seclusion or domination. When intercourse began, it was confined and partial, limited in place and limited in objects. Indian princes admitted a few trading factories; China allowed commerce only with the port of Canton, and then under numberless restrictions and impediments. Foreigners thus admitted must of necessity be kept apart, and the way to keep them apart was to make them not only live by themselves but take care of themselves, which meant that they must govern themselves. To have as little intercourse with them as possible was the policy of the native governments.

On the other hand, it was necessary for the protection of the foreigners that they should be kept out of the way of the natives as much as was possible. For these two reasons, foreigners formed separate communities governing themselves; the natives, on their part, abstaining from intrusion so long as there was no attempt to pass beyond the limits assigned, and the foreigners, on their part, not going beyond them. Each foreign settlement thus became an imperium in imperio, the chief of the settlement being, in most cases, the consul of the country of the settlers.

The relations thus established were generally settled in treaties. There are many such. The United States alone, during the hundred years of their existence, have had more than thirty, reaching to nearly every organized State and many half-organized tribes; to Turkey, China, Japan, Persia, Siam, Madagascar, Borneo, Muscat, Lew Chew, Morocco, Algiers, Tripoli, and Tunis. By these it is generally provided that American consuls shall have exclusive jurisdiction over civil disputes between American citizens. The treaties with Turkey, China, Japan, Siam, Morocco, Madagascar and Borneo give the consuls exclusive jurisdiction over crimes committed by Americans in the territories of the other: the treaties with Turkey, China, Persia, Siam and Madagascar give jurisdiction jointly to American consuls and officials of the other state over civil controversies between Americans and natives; the treaties with Japan give jurisdiction to the consular courts of claims of the Japanese against Americans, and to the Japanese courts of claims of Americans against Japanese; while the treaty with Borneo gives the consular courts exclusive jurisdiction of civil disputes between an American citizen and a Bornean subject.

This condition of things gives rise to many perplexing questions, and creates no little embarrassment. I have heard the Khedive of Egypt complain, before the introduction of mixed courts lately accomplished, that he was unable to invite foreign capital into his country as he would wish, because, in case of the non-fulfillment

of their contracts by foreigners, he had no remedy but to proceed against them in the consular courts. One of the questions growing out of the present condition of things arose while I was at Shanghai. This settlement is built on one of the tributaries of the Yang-tse-Kiang, and near the mouths of both rivers. The title to the soil, like that of all China, is in the Emperor, leases being given to the settlers. Besides these leases, the Government has made three grants, called respectively the American, English and French concessions, the legal effect of which appears to be to give to the settlers, or rate-payers as they call themselves, the right of local administration, and to the respective consuls the right of jurisdiction, to be exercised sometimes alone and sometimes in conjunction with a Chinese mandarin sitting in what are called mixed courts. The question was this: Some American residents, citizens of different States, being about to borrow money of an English bank upon a mortgage of their real property in Shanghai, the execution of the mortgage by their wives was required. By what law was the point to be decided-by the law of China, or the law of England, or the laws of the American States?--it so bappening that in some of those States the wife had a right of dower, in others none. If the land had been situated in Russia, at the mouth of the Amour, there could have been no question in the case, for the laws of Russia would alone have been consuited. What in principle should make a difference in this respect between land at the mouth of the Amour and land at the mouth of the Yang-tseKiang? Is it that one is in a Christian and the other in a non-Christian country, or that one is civilized and the other uncivilized? The former distinction is palpable, whether a just one or not; the latter depends upon the meaning of the word civilization. What is civilization, and in what respects is that part of Russia superior to China? No doubt the culture and manners of St. Petersburg are superior to those of Pekin; but is Petropavlosk better in its official establishment or in its administration than Shanghai? But if it were admitted that the administration of justice and the other functions of government are better performed in Siberia than in China, yet is the difference so great that one is entitled to be pronounced civilized and the other uncivilized? Is not the difference one of degree only? Can it be justly claimed that a nation which has maintained a regularly administered government, over hundreds of millions of human beings, for thousands of years; which had invented gunpowder and printing before they were dreamed of in Europe; which had a cultivated literature and perfected arts, while yet our ancesters were clothed in skins and lived on uncooked food can it. I repeat, be justly said of such a nation that it is uncivilized? It must be admitted, I think, that the point of civilization is not the one on which the question of international law, in its application to China, should

turn. As to the other reason, that which depends upon the reception of Christianity, it can not be a reason why one nation should be excluded and another admitted into the brotherhood of nations.

The chief reason why international law has not been applied to these nations is, I conceive, historical. That law began in Europe, was applied to Europe, fashioned for it, before intercourse with Asiatic and African countries had grown into considerable proportions. There is, however, another reason besides the historical one. An envoy of the United States, writing to his government, used this language: "I entered China with the formed general conviction that the United States ought not to concede to any foreign government, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign State be of our own family of nations-in a word, a Christian State. . . In China I found that Great Britain had stipulated for the absolute exemption of her subjects from the jurisdiction of the Empire. . . 1 deemed it, therefore, my duty to assert a similar exemption on behalf of citizens of the United States."

It was probably the intention of the envoy to convey the idea that the difference in rights arose not from the difference in religion, but from the difference in laws and social habits, such differences being in part due to other causes than religion. Whatever may be the minor discrepancies, there is a general similarity in the laws of the different American and European States outside of the Ottoman dominions, as every one can see who will take the trouble to compare the codes of the different countries. But the divergence becomes wider when we pass into Asia. There, to mention no other peculiarities, the legal position of women and the laws of descent are fundamentally different.

What then should be our conclusion respecting the desirableness and practicability of extending international law in its plenitude over all the States and communities of the world? There is no difficulty in answering this question, so far as it respects all those portions of the laws of nations which concern the relations of nations to each other; that is to say, their essential rights of sovereignty, equality, perpetuity, territory and property, their extra territorial action, their intercourse and compacts with other nations, and their rights of asylum and duty of extradition. In respect to those portions of the laws of nations which concern the relations of nations to the persons and property of the members of other nations, that is to say: those which relate to national character, to domicil, to national jurisdiction, to the duties of a nation to foreigners and of foreigners to the nation, the first two are applicable to the Oriental nations, and the last three are also applicable, with modifications which will be afterwards mentioned, and which may be more or less relaxed, as intercourse in

creases and assimilation goes on. Those regulations for mutual convenience, which form the subjects of so many modern treaties, are applicable to all nations, Western or Eastern, Christian or Pagan, to a greater or less extent, commensurate with the extent of that intercourse, the convenience of which it is the object of such regulations to subserve. And all the provisions for the preservation of peace which are proper for the most advanced nations are none the less proper for the less advanced. All those regulations of international law which respect the carrying on of war are applicable to all nations alike, the most and the least enlightened.

Private international law, that which treats of the relations of the members of a nation to the members of other nations, and under which are grouped all international rules respecting personal capacity and relations, marriage, divorce, contracts, descent and the administration of justice, is also applicable to Eastern no less than Western nations, except in respect to the administration of justice. We have, then, these points of divergence, the jurisdiction of Oriental nations over travelers and traders from the West, and the administration of justice where such persons are concerned.

How shall they be dealt with? So long as the judicial institutions of Oriental States remain as they are, it is impossible to subject Americans and Europeans to their jurisdiction. No one accustomed to the judicial procedure of the West would ever willingly be subject to the procedure of the East. There torture is in constant use, oaths are rarely administered, advocates are unknown, and, instead of fixed rules of decision according to law, the caprice of the judge or a vague notion of justice controls the decision. I have my self seen accused persons brought up for trial before a Chinese judge. Each one was brought in with a chain around his neck, the end of which was fastened to a heavy stone that he was obliged to lift when he moved; on entering the judge's presence he sank upon his hands and feet and remained so during the trial, scarcely daring to look up; a crowd of retainers surrounded the judge and took part in the trial, interrupting him, suggesting questions and making statements; and when the poor creature dared deny the charge, he was instantly put to the torture by men in waiting, who seemed as much part of the court as the judge himself. The punishments inflicted in all Oriental nations are strange and cruel, crucifixion being often among them. It would be revolting to subject our countrymen to such an ordeal and the chance of such a punishment.

It seems to me possible to obviate the difficulty by the establishment of mixed courts and a special procedure, for the disposition of the cases in which Americans and Europeans are parties. Approaches to such an arrangement have already been made. Mixed courts have been some time in existence at Shanghai and have worked well.

The practice there is for a consul to sit with a native judge in cases against natives where a foreigner is interested, and for a native julge to sit with a consul in cases against a foreigner where a native is interested. These also I have witnessed, and I see not the slightest difficulty in their practical operation. The late treaty between the United States and Japan provides that the claims of Japanese against Americans are to be prosecuted in the consular courts, while the claims of Americans against Japanese are to be prosecuted in the courts of Japan. Upon the whole, it appears that we have now arrived at a stage in the intercourse of nations when a rule more liberal than that heretofore applied may be adopted by Christendom. It is for the interest of civilization and humanity that Eastern nations should be brought as soon as possible within the pale of international law.

So lately as June of the present year a step of great importance has been taken, by the establishment in Egypt of mixed courts, consisting of a court of appeal, in which there are six European judges and four natives, and of courts of first instance, held by natives and foreigners.

My own conclusions, in short, are these:

I.-Oriental nations, or, to be more precise, non-Christian nations, should be admitted to all the rights and subjected to all the duties of the nations of the West, or, in other words, Christian nations, as such rights and duties are defined by international law, with the single exception:

II. That until there is a greater assimilation between the nations of the East and the West with respect to judicial institutions, mixed courts and a special procedure should be established for the decision of all cases, public or private, in which Americans and Europeans are parties.

August 2, 1875.

DAVID DUDLEY FIELD.