EXTRATERRITORIAL JURISDICTION IN GENERAL [§ 259

tionality frequently resided in a certain street or area where their consul acted as a judge in controversies between them. This practice was habitual in the Middle Ages. It extended from Byzantium to London, and from Flanders to Northern Africa, and even to Asia Minor. It grew out of the needs of commerce which demanded the administration of justice in behalf of foreign residents; and justice could not be obtained by any other process. Upon the capture of Constantinople by Mohammed II in 1453, permanent lodgment was secured in Europe by a power or political entity whose law was based upon the Koran, the requirements of which were not and did not purport to be applicable to nonMussulmans. Thus from the Ottoman point of view as well as from that of European States, it was unreasonable that such individuals should be subjected to the operation of that law. Immediately, therefore, the Turkish conqueror granted to the Jewish Rabbi and to the Armenian Patriarch in that city the right, and imposed upon them likewise the duty, to maintain justice among their respective co-religionists.3 For the same reason, Moslem authority is said to have yielded new and broader privileges with Heidelberg, 1907; J. Hadjilouka, De la juridiction consulaire en Turquie, Athens, 1907; W. E. Hall, The Foreign Powers and Jurisdiction of the British Crown, Oxford, 1895; Sir H. Jenkyns, British Rule and Jurisdiction Beyond the Seas, Oxford, 1902; Karl Lippmann, Die Konsularjurisdiktion im Orient, Leipzig, 1898; V. K. Wellington Koo, The Status of Aliens in China, New York, 1912; André Mandelstam, La justice ottomane dans ses rapports avec les puissances étrangères, Paris, 1911; Le sort de l'empire ottoman, Paris, 1917; La Turquie, Paris, 1918; Ernest Nys, "La juridiction consulaire", Rev. Droit Int. 2 ser., VII, 237; G. Pélissié du Rausas, Le Régime des Capitulations dans L'Empire Ottoman, 2 ed., Paris, 1910; Sir Francis Piggott, Exterritoriality, London, 1907; J Pillaut, Les consulats du Levant, Nancy, 1902; Francis Rey, De la protection diplomatique et consulaire dans les Echelles du Levant et de Barbarie, Paris, 1899; James Harry Scott, The Law Affecting Foreigners in Egypt, Edinburgh, 1907; Georges Soulié, Les droits conventionnels des étrangers en Chine, Paris, 1916; V. Sténio, La capitulation de 1535, Paris, 1915; J. Vergé, Des consuls dans les pays d'Occident, Paris, 1903.

1 E. Nys, La Juridiction consulaire, Rev. Droit Int., 2 ser., VII, 237, 239–243. 2 "The mussulman law was not made for the foreigner, because he is a nonmussulman; it was, therefore, necessary that he should be subjected to his own law. The mussulman law could not protect him or judge him or punish him, inasmuch as it only protected or judged or punished mussulmans; it was necessary, therefore, that he should be protected, judged and punished by his own law. The mussulman law, that is, the Jus quiritium, is the exclusive right and privilege of mussulmans and it is the Jus gentium which governs the foreigner. In other words, and to resume, let us say: the foreigner, traveling or residing in the Ottoman Empire, remains subject to his personal law, because the law of the Ottoman Empire, being a religious law, cannot be applied to him." G. Pélissié du Rausas, Le régime des capitulations dans L'Empire Ottoman, 2 ed., I, 21.

See, also, Philip M. Brown, Foreigners in Turkey, Chap. I; F. Rey, op. cit., 5; Field, J., in the case of In re Ross, 140 U. S. 453, 462-463; James B. Angell, "The Turkish Capitulations", Am. Hist. Assn., Annual Report, I, (1900), 513, 514-515.

3 See Pierre Arminjon, Etrangers et protégés dans L'Empire Ottoman, I, 13–16. VOL. I-15 449

respect to foreigners than the Greek Christian authorities had conceded. To the French kings were granted the right, not only to exercise jurisdiction over French subjects, but also to accord protection to those of other non-Mussulman nationalities who were without representation. Such persons were regarded as assimilated to French nationality and were subjected to French jurisdiction.1 Under the same jurisdiction were even placed Ottoman Christian subjects engaged solely in the foreign trade. Conversely, it was later agreed that the conversion of a Frank to the Mohammedan religion should result in the loss of his French nationality, and obviously, by implication, subject him to Turkish jurisdiction.3

A series of unilateral agreements, known as Capitulations, from early in the sixteenth to late in the eighteenth century, embodied the concessions of the Ottoman rulers in favor of France and several European countries. These agreements did not specify with precision the scope of what was granted, but referred to, and oftentimes purported to confirm, customary privileges already long enjoyed.5 Upon the Capitulations were based the treaties of the nineteenth century. They likewise referred to the customary law. Thus, the treaty with the United States of May 7, 1830, declared that the exercise of the privileges therein described should follow "the usage observed towards other Franks."6

1 F. Rey, Protection diplomatique et consulaire dans les Échelles du Levant et de Barbarie, 15-17; E. Nys, in Rev. Droit Int., 2 ser., VII, 237, 243–246.

It may be observed that the right of aliens to enjoy the protection of France became also a duty on their part. Declares Rey, "The western powers themselves, Portugal, Spain, England and Holland, could not trade in Turkey, save under the protection of the [French] King. The banner of France covered their ships, the Consul of France protected their nationals.... Other flags appeared in Turkey, but France remained the protector of all Europeans that lacked representation, as it had long been that of innumerable missionaries sent by Rome to the Orient for the purpose of restoring to the obedience of the Pope the schismatic Christians." Op. cit., 15.

2 See Capitulations of 1604, de Testa, Rec., I, 141, commented on in F. E. Hinckley, American Consular Jurisdiction in the Orient, 10.

3 F. E. Hinckley, American Consular Jurisdiction in the Orient, 11.

4 For texts of the Capitulations in favor of France of 1535, 1604 and 1740, see de Testa, Rec., I, 15, 141 and 186, respectively. For texts of those of 1569 and 1673, see Gabriel Noradounghian, Recueil d'actes internationaux de l'Empire Ottoman, Paris, 1897, I, 88 and 136, respectively. For texts of Capitulations of 1675 in favor of Great Britain, renewing those of 1580, id., I, 146. For texts of those of 1809, see Brit. and For. State Pap., I, 768. For texts of Capitulations in favor of the Netherlands, 1680, Austria, 1718, and Russia, 1783, see Noradounghian, op. cit., I, 169, 220 and 351, respectively.

F. Rey, op. cit., 16; also statement in Moore, Dig., II. 596. Declares Hinckley: "Whether the ancient usages, so frequently mentioned and confirmed in the Turkish capitulations, included essential_rights, not described in the texts of earlier documents, cannot be shown. In fact there is much difference in the provisions of the capitulations and even some divergence upon important points." Op. cit., 16.

Malloy's Treaties, II, 1319.

EXTRATERRITORIAL JURISDICTION IN GENERAL [§ 260

Gradual recognition of the principle that a State should enjoy actual supremacy throughout the territory over which it asserted control, together with the establishment of national local tribunals capable of administering justice for aliens as well as natives, necessarily led to the complete abandonment of extraterritorial jurisdiction throughout Europe generally. In Turkey, however, the old system remained and even developed. While in Western Europe the exercise of jurisdiction became in fact the sole possession of the territorial sovereign, in the Ottoman Empire the Sultan, by reason of the inapplicability of the Mohammedan law to nonMussulmans, was unable to regain possession of what had earlier been relinquished.2

The extraterritorial privileges of western States in oriental countries, such as China and Japan, were not secured until well into the nineteenth century, when the supremacy of the territorial sovereign had long been recognized as a fundamental principle of international law. There was no opportunity for the development of a customary law respecting the exemptions of resident aliens. The treaties, therefore, specified clearly what was granted. The western States gained no privileges of protection, whether jurisdictional in character or otherwise, over persons other than their own subjects or citizens.3

Exemptions from the local jurisdiction, whether enjoyed in Turkey or in Asiatic States, are, as has been noted, regarded as necessarily based upon the consent of the territorial sovereign.1

§ 260. The Same.

"In countries not inhabited by any civilized people, or recognized by any treaty with the United States", the United States is not reluctant to exercise jurisdiction through its consular officers

1 E. Nys, in Rev. Droit Int., 2 ser., VII, 237, 243.

2 But see the attempt that was made in September, 1914, and described in Rev. Gén., XXI, 487–493.

See statement in Moore, Dig., II, 596. The same writer declares also, "It may be pointed out, as an historical fact, that the practice of extraterritoriality in China and Japan began with and rested upon the treaties, and did not originate in custom, as it did in the Ottoman dominions. This distinction has important consequences, and should not be lost sight of." Id., II. 602. See, also, F. E. Hinckley, American Consular Jurisdiction in the Orient, 15-16; V. K. Wellington Koo, The Status of Aliens in China, New York, 1912, Chap. IX.

Papayanni v. Russian Steam Navigation Co., 2 Moore's Priv. C. C. N. s. 161, Beale, Cases on Conflict of Laws, I, 87; also Piggott, Extraterritoriality, 1907 ed., 7. Cf. Exemptions from Territorial Jurisdiction, In General, supra, § 244.

with respect to the conduct of American citizens in such places.1 Such action is not in defiance of the claim of any political power deemed to be entitled to respect as a territorial sovereign. The problems incidental to the exercise of extraterritorial jurisdiction commonly arise, however, in relation to countries where some government exists which the outside world regards as capable of exercising rights of property and control and of possessing titles demanding respect, and with which, therefore, there has been a disposition to conclude agreements.

When a State exercises a certain degree of protection over a region or country within which rights of extraterritorial jurisdiction have been yielded, the protecting State cannot justly demand the suspension or termination of extraterritorial privileges until it itself, by some appropriate process, assumes responsibility for the administration of justice. Such assumption takes place when, for example, the State by annexation asserts its own exclusive control over the protected country.2

1 Rev. Stat., § 4088, U. S. Comp. Stat. 1918, § 7638.

See Mr. Justice Holmes, in the course of the opinion of the Court in the case of American Banana Co. v. United Fruit Co., 213 U. S. 347, 355356.

2 A State, upon the acquisition of the territory of a country where extraterritorial privileges are enjoyed, obviously acquires the right to forbid the further exercise of jurisdiction by other powers. The actual termination of such privileges is sometimes accomplished by treaty. See, for example, treaty between the United States and Great Britain, Feb. 25, 1905, relative to the relinquishment of extraterritorial rights in Zanzibar, For. Rel. 1905, 485; id., 1907, I, 569-577; also treaty between the United States and France March 15, 1904, relative to Tunis, For. Rel. 1904, 304. By reason of the scope of certain leases by China in 1897 and 1898, to Germany, Russia, and Great Britain, respectively, the United States, as well as other powers, except Japan, believed that the several consular officers within the leased areas lacked authority to exercise jurisdiction under their existing exequaturs. For. Rel. 1900, 382 to 390.

It is not believed that a proclamation of martial law emanating from a country which has conceded extraterritorial privileges to a foreign State, operates to suspend the right of the latter to exercise jurisdiction over its own nationals. See Mr. F. W. Seward, Acting Secy. of State, to Mr. Maynard, June 26, 1877, MS. Inst. Turkey, III, 251, Moore, Dig., II, 641. Concerning the effect, however, of such a proclamation from a State acknowledged to be for all purposes a full member of the family of nations, and in actual control of the country, see Mr. Frelinghuysen, Secy. of State, to Mr. Whitney, Consular Officer at Tamatave, Aug. 28, 1883, 108 MS. Inst. Consuls, 185, Moore, Dig., II. 642; also statement, id., 644. Compare attitude of Mr. Bayard, Secy. of State, in 1889, relative to a proclamation of martial law by German authorities at Apia, House Ex. Doc. 119, 50 Cong., 2 Sess., 2, 3, Moore, Dig., II,

643.

See Brit. and For. State Pap., CVIII, 868, containing exchange of notes between Great Britain and Greece in August and September, 1914, relative to the renunciation by Great Britain of extraterritorial rights in territories acquired by Greece, and in which such rights under the Turkish Capitulations had been enjoyed.

FOR WHOM CONCESSION IS CLAIMED

(b)

[§ 261

261. Persons in Whose Behalf Extraterritorial Jurisdiction May Be Claimed.

Notwithstanding their lack of uniformity, the several treaties yielding privileges of extraterritorial jurisdiction to the United States have, with the exception of those with Morocco of 1787 and 1836, and Tripoli of 1805, been alike in that their provisions have specifically purported to be applicable to cases concerning citizens of the United States. In the exercise of rights thereunder, the United States has taken the position that:

American nationality includes all persons, whatever their civil status, who owe allegiance to the United States either as citizens by birth or by naturalization or as native inhabitants of the insular possessions, or as seamen on American ships, or as assistants or guards in legations and consulates, or, to a limited extent, as employees of American citizens in oriental countries.2

In former years such claims were productive of controversy with Turkey when, for example, American jurisdiction was demanded in behalf of a naturalized American citizen of Turkish origin who, after having expatriated himself without the consent of the Sultan, returned to Turkish territory, and was there subjected to local criminal prosecution. Although the United States was in such case unwilling to yield its claim, it consented, nevertheless, to the expulsion of the individual when he was charged with participation in a conspiracy to overthrow the Turkish Government.

The fact that expatriation and the acquisition of American

1 The treaties with Morocco of 1787 and 1836, and with Tripoli of 1805, referred to "citizens of the United States, or any persons under their protec tion"; the treaty with Tripoli of 1796, to "the protection to be given to merchants, masters of vessels and seamen"; the treaty with Siam of 1833, to "merchants of the United States trading in the Kingdom of Siam."

Doubtless the inhabitants of American insular possessions who are nationals of the United States are to be regarded as citizens in an international sense, although such persons may fail to be so regarded in a constitutional one. See Report on Citizenship of the United States, by Messrs. Scott, Hill and Hunt, 207.

Concerning the nature and extent of the interposition of the American Minister to Turkey, in 1894, in the case of the arrest and imprisonment of Turkish subjects employed in American Schools, see For. Rel. 1894, 740-749; also Hinckley, 86 and 115.

2 F. E. Hinckley, American Consular Jurisdiction in the Orient, 78, quoted with approval by Mr. Wilson, Acting Secy. of State, to Mr. Fletcher, American Chargé at Peking, July 30, 1909, For. Rel. 1909, 69.

3 Report of Mr. Olney, Secy. of State, to the President, Dec. 19, 1895, For. Rel. 1895, II, 1256, 1259–1262, Moore, Dig., II, 706-709; also Mr. Root, Secy. of State, to Mr. Leishman, American Minister, Oct. 19, 1905, relative to cases of Vartanian and Afarian, For. Rel. 1905, 892-894.