Good offices, however, have on numerous occasions been extended to protect persons, even not American citizens, from religious persecution, especially Christians in Turkey.1 Persecuted native teachers and native converts have occasionally received a limited protection and the treaties of Berlin (1878) and of 1903 with China stipulate that there shall be no discrimination against native converts.2 On grounds of humanity, the United States has at various times expressed its disapproval of or conveyed the protests of American public opinion against the abhorrent persecution of Jews in Morocco, Russia and Roumania. This intercession of the United States has been characterized in its expression by that national reserve against interference in the affairs of European powers which may be considered inherent in our foreign policy. Only when the direct result of such persecution was to cause the immigration of large numbers of wretched paupers into the United States, has justification been found for a more vigorous remonstrance against the persecution.1

A limited protection is in certain cases extended to persons who have not yet acquired full citizenship, to which reference will be made hereafter. These include persons who have resided in the United States for three years, and have declared their intention of becoming citizens, to whom the Act of March 2, 1907 authorizes the issuance of passports valid for six months.5 Awards were made by the mixed claims commission with Mexico under the protocol of July 4, 1868 to a free American negro, although at the time the injury occurred, it had been judicially held that the claimant was not an American citizen.6

1 Cases cited in Moore's Dig. VI, 334–335.

2 Infra, p. 470.

Moore's Dig. VI, §§ 923, 925 and 926.

President Harrison in Annual Message, Dec. 9, 1891, For. Rel., 1891, xii; Mr. Hay, Sec'y of State, to Mr. Wilson, July 17, 1902, For. Rel., 1902, p. 910. See other extracts quoted in Moore's Dig. VI, §§ 925, 926.

Infra, p. 501. See also French protection of a person in Haiti who had not yet acquired full French nationality. 18 Clunet (1891), 115. Koszta's case may be noted in this connection. Infra, § 250.

Mathieu (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2461; Howard's case, ibid. 2462. See also Aubry's case (France) v. U. S., Jan. 15, 1880, ibid. 2511 (as to free negroes becoming citizens by annexation of Louisiana). The American Minister in Mexico had in 1855 issued a circular to American consuls forbidding them to extend protection to free negroes born in the U. S. Sec'y Marcy had however declared that

PROTECTION OF FOREIGNERS IN "EXTRATERRITORIAL" COUNTRIES

§ 202. Extraterritorial Protection and Jurisdiction.

In countries in which the United States exercises extraterritorial jurisdiction, protection is not strictly confined to citizens of the United States. While the practice varies somewhat in different countries, e. g., in Turkey, Morocco,3 and China, it contemplates a limited protection of foreigners, i. e., persons not American citizens, and in many cases of certain classes of natives. In this connection, diplomatic protection by way of good offices is clearly to be distinguished from jurisdiction, for the United States has firmly denied its consuls the right to entertain jurisdiction of foreigners, even with the consent of the foreigner and of the local government.5 Good offices are often extended to foreigners who have no diplomatic or consular representative in the country or conveniently near, although wherever possible the conditions accompanying delegated protection, namely, the consent of the foreigner's national government, the consul's home government and of the local government, are required. In China, however, protection should be extended to them, providing they were free, notwithstanding the Dred Scott decision which held them not to be citizens. The U. S.-Mexican commission, until Thornton became Umpire, also made awards in favor of persons who were either only domiciled in the United States or had, in addition, declared their intention of becoming citizens. Infra, § 252.

1 See supra, p. 433.

2 Moore's Dig. II, § 288; Rey, F., La protection diplomatique . . . dans les échelles du Levant, Paris, 1899, p. 244 et seq.; Brown, Philip M., Foreigners in Turkey, Princeton, 1914. Turkey's attempt to abrogate the Capitulations has already been referred to, supra, p. 431.

3 Treaty of July 3, 1880, Treaties in Force, 1904, pp. 428-434, especially arts. 1, 7, 9, and 16, Moore's Dig. II, § 289; Le Bœuf, Paul, De la protection diplomatique et consulaire des indigènes au Maroc, Bergerac, 1905.

Hinckley, pp. 85, 88. See Hall, Foreign powers and jurisdiction, Oxford, 1894, pp. 136-139.

'See Instructions of Secretaries Fish and Gresham reprinted in Moore's Dig. II, 597-599. In British consular courts, the consent of the foreigner sued and of his government are both prerequisites to entertaining jurisdiction. Piggott, Exterritoriality (1907 ed.), 183–184. As to protégés, it is very doubtful whether the statutes of the United States authorize the assertion of criminal jurisdiction over those who are not American citizens.

6 Hinckley, 88 and infra, § 204. France and Germany, however, appear to have exercised exterritorial jurisdiction over Swiss citizens. Hinckley, 89. Under the

Russia and France extend wide protection to the subjects of nontreaty powers, a practice to which China consents, subject to the limitation that protective functions shall not assume the form of jurisdiction. The theoretically and legally correct position of China has at times been violently overturned by the aggressive attitude of certain powers.1

§ 203. Protégé System.

This protection of foreigners extends, within its limitations, not only to subjects of the countries of the western world, but has, as its distinctive feature, the protection of certain classes of natives. These natives are generally connected in some official capacity with the consulates or legations of the United States, or, in China, they may be employees of American citizens.2 The extent of protection furnished these persons, generally designated as protégés, varies somewhat in the different extraterritorial countries. In the Ottoman Empire, the protégé system-both as to foreign and native protégés-was formerly much abused. Foreigners of various nationalities and large numbers of native subjects could, by merely enrolling their names at a consulate, receive its protection.3 This so-called doctrine of assimilation, which prevailed principally in the Levant, has been gradually restricted by the Ottoman government, with the coöperation of the foreign powers, in which effort the United States and Great Britain have taken a prominent part. The protection of native protégés is now restricted to a limited number of dragomans, guards or cavasses, convention of Nov. 7, 1899 for the submission of claims growing out of the military action of American, German or British officers in Samoa, it was agreed that either country might, with the consent of the other, submit to the arbitrator similar claims of other persons (not Samoan natives) who were under its "protection." For. Rel., 1899, p. 671.

1 The contentions in question were brought to the attention of the U. S. on a certain occasion in 1909, For. Rel., 1909, pp. 68–69. For the position of the U. S. on this matter, declining to exercise jurisdiction over the subjects of non-treaty Powers, see Aide-Mémoire to the Russian Embassy, Oct. 11, 1910, For. Rel., 1910, 838. 2 For protection of Chinese employees of American citizens, see For. Rel., 1900, pp. 394-402.

3

Hinckley, 83; Hall, 137; Rey, 199 et seq.; Moore's Dig. II, 596; H. Doc. 326, 59th Cong., 2nd sess., 206. The protégé system does not, as such, exist in China. Koo, ch. XII and XVIII.

and servants, and their wives and minor children, so long as they are actually employed in the service of the consulate or legation. It is the policy of the United States to limit to as few as may be necessary the persons exempt from the local jurisdiction by reason of their attachment to legations and consulates as assistants, guards or servants.1 This appears also to be the British policy.2

In China, the extent of protection to natives is usually limited by treaty. The Chinese employee of a citizen or subject of a treaty power in the Anglo-American settlement at Shanghai and in certain ports of China may not be arrested without notification to the consul nor be tried except under certain formalities.3

In Morocco, the practice of protection is regulated by the treaty between the powers and Morocco of July 3, 1880, to which treaty the United States is a party. By this convention the protected persons, or protégés, are divided into three classes: (1) Native employees of legations and consulates; (2) native factors, brokers, or agents (semsars) employed by foreign merchants; and (3) natives, not exceeding twelve in number, who have rendered signal services to the protecting power.

1

1 Hinckley, 85; Consular Regulations, 1896, § 173. No passports are issued to persons thus protected but, when necessary, certificates, setting forth their official positions. Moore's Dig. II, § 287.

2 Hall, 137. Under its former policy Great Britain is still constrained to extend protection over a considerable number of protégés. Brook, State protection of subjects abroad, Law Mag. and Rev. 1905, p. 171 (taken largely from Hall).

3 Hinckley, 85-86; Moore's Dig. II, 599; For. Rel., 1900, 394-402. Claims of Chinese in foreign employment killed or injured in the performance of their duties to their foreign employers were presented to the Chinese Mixed Claims Commission of 1912. See also claims of legation guards killed or wounded during siege of Peking, Sec'y of State Hay to Mr. Conger, Feb. 19, 1901, For. Rel., 1901, App. 362; and claims of native servants in Chang-Sha riot claims, Mr. Knox, Sec'y of State, to Mr. Calhoun, Oct. 22, 1910, For. Rel., 1910, 352. The arrest of a Chinese employee would probably be objected to only if the arrest is made on foreign premises or where a foreign legal or business interest is directly affected. The Chinese authorities, indeed, have at times contended that notification to the consul is necessary only when the arrest is made on foreign premises.

4 Treaties in force, 1904, 428-434; Moore's Dig. II, § 289. Regulations have at times been framed by the Dept. of State for the guidance of American consular officers. See Ass't Sec'y Porter to Mr. Mathews, Dec. 9, 1886, 119 MS. Instructions to Consuls, 688. The claims of protégés were submitted by the U. S. to the Moroccan Claims Commission of 1910. A brief account of British treaty relations with Morocco is given in 37 Law Mag. and Rev. (Nov. 1911), 101.

The United States and various other Powers reserve the right to pass finally upon the eligibility of these protégés, as set forth in the lists furnished annually to the Sultan's Minister for Foreign Affairs at Tangier. Moreover, the foreign Legations have never recognized the claim of the Moroccan government of the right or necessity to sanction these lists. The gradual extension of French influence in Morocco may ultimately bring about a modification of the protégé system.

It has been observed that the United States discourages the protégé system, and protects only definite classes of native protégés who render service to American representatives or interests. With regard to missionaries, this government likewise follows a policy of confining its diplomatic protection to American citizens, differing in this respect from the practice of some of the more important countries of Europe, which have considered themselves obligated to defend certain great faiths connected with their national history. Some measure of protective surveillance has been provided for native converts to Christianity, in that Turkey, by the treaty of Berlin,2 and China, by the treaties of 1858 and 1903 with the United States, are under obligations not to discriminate against native converts.

3

The status of American citizens and their descendants who reside permanently in American communities in countries in which the United States exercises extraterritorial powers will be considered hereafter.4 It may here be said merely that the rules as to expatriation and the provisions of § 1993 of the Revised Statutes concerning the citizenship of children born abroad were, until recently, held by the Department of State as not applicable to the descendants of native American citizens resident in such distinctive communities.5 By virtue of the right

The U. S., however, permits the Maghzen to register his objections to the lists of protégés, but reserves to itself the right to examine and pass upon his objections. As to the lists furnished in Tunis, see 39 Clunet (1912), 277.

2 Art. LXXII, Hinckley, 110.

Hinckley, 119, 121.

Infra, § 333. Certain other topics, such as dual nationality, married women, naturalized citizens, in so far as they are related to extraterritorial jurisdiction will be discussed at more appropriate places.

5 This rule, which prevailed from 1887 until 1914, has very recently been changed, so that no exception is made, even in Turkey, to § 1993, R. S. Special Instructions