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§ 37. Concurrent legislation of two nations for same territory: In general. Out of the commercial intercourse which citizens of the United States and of other Christian nations have with Mohammedans and other Eastern peoples, whose laws and customs differ radically from those of Christian nations, arises a necessity for a modification of the laws of the non-Christian nations. These modifications are usually accomplished by treaty. When modified, offenses against the sovereignty of such a nation, committed by a citizen from a Christian nation, are tried in courts established in such nation and punished by methods provided by the Christian nation. The power of the United States to provide for such a trial and a punishment of its citizens, when at variance with the provisions of the Constitution, was called in question in Re Ross (32).

§ 38. Same: Illustration. An American ship was lying in the harbor of the Japanese city of Yokohama. Ross committed murder on board that ship. He was tried by the American consular tribunal in Japan and sentenced to death. The trial was conducted before a consul from the United States, and Ross was by him convicted and sentenced to death without taking the verdict of a jury. This method of trial was agreed upon between the Japanese and United States governments, by treaty, to avoid subjecting citizens of the United States to the methods of trial and punishments of the Japanese, which were repugnant to those approved in the United States. The President of the United States commuted this sentence and

(32) 140 U. S. 453.

made it life imprisonment in the penitentiary at Albany, New York. Ross applied for a writ of habeas corpus, and contended that the legislation authorizing treaties of such a character to be carried out was unconstitutional, in that the method of accusation was not by indictment of a grand jury and the trial was without a jury, both of which are expressly provided for in the United States Constitution. The court held that the laws did not violate the Constitution as they were applicable to a territory to which the Constitution did not extend its protection. The offense Ross had committed was an offense against the Japanese government, as the crime was of a character that disturbed its public tranquillity and it was committed on an American vessel lying in one of its harbors. But the method of trial and punishment of the crime, inasmuch as it was committed by a citizen of the United States, was different for him than for one of Japan's own citizens. Yet, the citizens of Japan were not thereby affected, but only citizens from the United States; thus the Japanese territory had two forms of legislation to punish the same crime, one which was originally Japanese and the other American, but only one was applicable to a single class of persons under its jurisdiction.

§ 39. Same: Conflict as to applicable law. The Ross case is an instance where the Japanese law was modified by an express agreement between it and the United States. As a result two methods of trial and punishment were provided for by its laws, one applicable to Japanese citizens and one to citizens from the United States. In that case, however, no conflict arose as to which of the two

distinct territorial laws defining the method of trial and punishment was applicable to Ross.

In an English case (33), the modification which the government of India permitted to be made in its laws to accommodate English citizens who settled there resulted in presenting a conflict in India. The English had settled in India for purposes of commerce and trade in what are known as factories. These factories, owing to the indulgence or weakness of the Hindoo potentates, were permitted to retain the laws of England for Englishmen, and they were treated for many purposes as a part of the territory of the English sovereign. The English law, at the time of those settlements, provided for a forfeiture to the crown of all the personal property of one who committed suicide. Rajah, a Mohammedan and subject of India, resided within the territorial limits of one of these factories, and, while thus a resident, took his own life. By the Hindoo code, this act derived its moral character altogether from the circumstances in which it was committed; sometimes it was blameable, sometimes it was justifiable, and sometimes it was meritorious, or even an act of positive duty. Under no circumstances was it punished by a forfeiture of the property of the person who had done the act. The advocate-general, on behalf of the English crown, made a claim to all the Rajah's personal property, on the theory that the English law of forfeiture applied to him, as he had lived within the factory where the English law controlled. The attempt was made to apply to a subject of India the law which was applicable only to Eng

(33) Advocate General v. Dossee, 2 Moore P. C. (N. S.), 22.

lishmen, and which, as shown in the Ross case, could at any rate be successfully applied to them.

§ 40. Same: Rational solution of difficulty. The court held, however, that the English law applied only to subjects of Great Britain, who resided in the factories, and that the law of India was the law by which Indian subjects within the same district were governed.

The inconvenience and injustice resulting from the principle advocated in a case heretofore discussed (34), where it was suggested by the court that two nations could provide the law for the same individual in a given territory and on a given topic, is forcibly presented by this case and rationally solved. If both the law of England and the law of India had been applicable to the Rajah, and he had been placed in circumstances where it was deemed by the Hindoo code as a positive duty to take his own life, then a failure to do so, on the one hand, would have been an offense to that code; on the other hand, his obedience to it would have resulted in an offense to the English law. The solution of the English court for such a dilemma is given in the Rajah case, by holding that, though two sets of laws are applicable to a given territory, they are not both applicable to the same class of individuals, but one to one class and another to another. The conflict thus disappears, and it becomes a mere matter of determining to which class this individual belongs.

§ 41. Summary. In the section preceding this (§§ 820), it was pointed out that a vessel carried with it the laws of the nation whose flag it carried. In case of its

(34) See §§ 18, 19, above.

temporary accession to the territory of another nation with different laws, as a rule the laws of the ship controlled as against the laws of the neighboring land. The only exception to the rule was found where an act was committed on board which disturbed the public tranquillity of the mainland, and in such a case its law was effective. In this section the matter of permanent accession has been treated. It is found that where a territory, having a fixed body of laws, is added to another having its own laws and customs, either by purchase, or otherwise, the law of the new territory remains effective to regulate the rights and duties of its residents, in the absence of legislation by the dominant nation made applicable to the accession. The principle thus deduced from cases involving a strictly international union of territory is applicable to the relations that exist between the central government of the United States and territory it has acquired from the states upon which to place its forts and military equipment. It is also applicable to the much more important relation between the states themselves and the Federal government. It provides a solution for important questions in fields of legislation which the states have delegated to the central government but in which Congress has not acted. The answer it gives to the question, whether the law of the state as it existed upon its admission to the Union shall be applied, or not, is, that the pre-existing law shall control.

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