sixth, trusts. * As to trusts, equity will superintend and protect the creation of trusts, whether vesting in the trustee real or personal estate, and take jurisdiction of trusts, whether resulting from an express deed, or the force of cir cumstances and the situation of parties, which latter are implied trusts." The decree provides, in detail, for new trials and appeals from the consular courts in all proceedings at law, and adds: "New trials and appeals shall lie from the equity jurisdiction of the United States consular court as from the common law jurisdiction of the same." It is thus seen, that the treaty, the act of August 11th, 1848, and the commissioner's decree of Oct. 2d, 1854, furnish a complete system of law and jurisprudence, and courts of competent jurisdiction, for the punishment of crimes and offenses committed by American citizens in China, and for the determination of all disputes between such citizens. It remains to be considered whether the system embraces questions of dispute between such citizens and other foreigners resident there. ("The China Mail," May 15th, 1856; Forbes v. Scannel, 13 Cal. Rep., p. 242.)

§ 33. It will be observed that, according to the provisions of the foregoing treaties, where controversies arise, in China, between citizens of the United States and subjects of Great Britain or France, the Chinese laws do not apply, nor can the Chinese tribunals give any relief. The jurisdiction of such controversies is left to be determined by treaties between the respective governments. But as no such special treaties have ever been made, and, perhaps, never will be made, are there no means left for the determination of such controversies? Is the system of law and jurisdiction established by the treaty, and by the act of 1848, so imperfect and defective, that Asiatic, European, and non-resident Americans in China have no means of determining their controversies with Americans resident there; and can American residents have no judicial relief against other resident or domiciled foreigners? There is no plainer or better established principle of public law than this, that alien friends may sue in the courts of the defendant's country. Now, in China, as in other unchristian countries, American citizens and American consular courts enjoy the rights of ex-territoriality, and the same may be said of British

and French citizens, and British and French consular courts. Each one is, in the eye of the law, to be considered within the territory of its own state. It follows, therefore, that an American in China may resort to the British courts there against an Englishman, or to the French courts there against a Frenchman, precisely as he might in England or France, and that an Englishman or a Frenchman may resort to American courts in China against an American, precisely as he might in the United States. The maxim of the Roman law, actor sequitur forum rei, is an admitted principle of the jurisprudence of all civilized nations. (Foelix, Droit Int. Privé, tit. 11, ch. 2; Cushing, Opinions U. S. Att'ys Gen., vol. 7, pp. 517, 518; De Clercq, Guide des Consulats, pp. 697-702; Riquelme, Derecho Pub. Int., lib. 2, tit. 1, cap. 5; Forbes v. Scannel, 13 Cal. Rep., p. 242.)

§ 34. The United States Attorney General, Mr. Cushing, in his official opinion, has fully discussed this question with respect to the jurisdiction of the United States courts in China. In a civil controversy, arising under a demand by a Chinese against an American, he says: "The Chinese will go into the United States consular court as plaintiff, and that court will take jurisdiction of the defendant as an American; and where the demand is by an American against a Chinese, the former must, of necessity, be content with such judicial or executive action of the Chinese government in the premises as appertains to their institutions, and as, by application, may be required on the part of the United States. As to the other case," he continues, "that of controversies occuring in China between citizens of the United States and subjects of any other (christian) government, the treaty provides that the same shall be regulated by the treaties existing between the United States and such governments, respectively, without interference on the part of China.' (Art. twenty-five.) Now, we have no special treaty with any of these governments on this point, nor is any needed, or necessarily required or intended by the stipulation under consideration. With all, we have treaties of amity, or of ordinary commercial and social intercourse, and that suffices to meet the exigency. But, by the tenor of those treaties, as they are construed by the law and usage of nations, an Englishman

has the right to sue a resident American, or an American a resident Englishman, as alien friend, in all places wherever, respectively, the jurisdiction of the other country exists locally, and is complete as to subject matter, persons, and remedial forms. The jurisdiction of the United States is complete as to their citizens in China, and the jurisdiction of Great Britain is complete as to her subjects in China. That the jurisdiction, in each case, is ex-territorial; that in China it is excepted from the local territoriality, and that it is outside of the territoriality of either Great Britain or the United States, is a fact wholly immaterial to the question. It is a question free of all doubt on principles of international right, and subject only to the single inquiry, whether the given country, each proceeding in established legal forms, by whatsoever authority such forms be established, has conferred on its courts of justice in China jurisdiction ad hoc, or whether that remains to be done. Here, again, the statute is explicit and ample. It confers on the consular courts jurisdiction of 'all civil cases arising under said treaty.' A demand of an Englishman against an American is a civil case arising under the treaty, as we see. Therefore, a suit may be brought by the Englishman against the American in the consular court of the United States; as, undoubtedly, in the consular of Great Britain, it may, consistently with public law, be brought by an American against an EnglishIf the Englishman were within the territorial jurisdiction of the United States he might sue, but would also be subject to suit in the local courts, as the American might and would be in England. Nay, a suit would lie in the courts of Great Britain or the United States, between residents, both being aliens in the country. In China, the relative condition of all these persons differs in this, that the local courts of each government, being ex-territorial ones, have no territorial jurisdiction, but only a jurisdiction as respects persons, namely, its own citizens or subjects. Of course, neither government can take compulsory jurisdiction there of a subject or citizen of any other, but each may act compulsorily upon its own, at the suit of that of another. Perhaps neither government is under perfect obligation to do this, but it may do so in obedience to national comity;

man.

it can rightfully do so if it will; and its obligation to do so will be perfect, provided the exercise of the right be reciprocated by the other government." These views are recognized and carried out in the "rules and regulations" for the United States consular trust in China, contained in the decree of Commissioner McLane, dated October 2d, 1854. In rule second, it says: "When a citizen of the United States, who is a resident in China, or any subject of the Emperor of China, or the citizen or subject of any other state or nation, may have a right to bring suit against a citizen of the United States in the United States consular court in China, has a claim arising on contract and already due, against any citizen of the United States residing in China, may apply to the United States consular court where the debtor resides, to declare him insolvent, and close his affairs," etc. (Cushing, Opinions U.S. Att'ys. Gen'l., vol. 7, pp. 517-519; "The China Mail," May 15, 1856; Forbes v. Scannel, 13 Cal. Rep., p. 242; Foelix, Droit International Privé, tit. 11, ch. 2.)

CHAPTER XI.

MUTUAL DUTIES OF STATES.

CONTENTS.

21. All international rights have their corresponding duties - 2. Classification of the duties of states-23. Duties corresponding to perfect rights? 4. State responsible for acts of its rulers? 5. Acts of subordinate officers 26. Acts of private citizens-27. If such acts be ratified-28. General conduct of citizens-29. Pretended emigration and expatriation - 10. Duties of mutual respect- 11. Failure in respect not always an insult12. Right to trade- 13. Mutual duty of commerce-2 14. Declining commercial intercourse - 15. Total prohibition of China and Japan 16. Imperfect duties- 17. Duty of mutual assistance. 18. In case of famine 19. In case of floods, fires, etc.- 20. For the preservation of others 21. Duties of humanity- 22. Offices of humanity may be asked but not required — 23. Each one to determine whether it will grant them 24. Rule and measure of such offices- 25. Duty of international friendship.

§1. Having discussed the general rights of sovereign and independent states, with respect to their relations with each other, it is proposed here, to consider briefly the duties resulting from, or corresponding to, such rights. Every right has its correlative duty. As the international rights of states are divided into perfect and imperfect rights, so the corresponding international obligations may be also divided into perfect and imperfect duties. It will be remembered that any right of a sovereign state is none the less a right because it is classed as imperfect in international jurisprudence, or