not lawfully by legislative enactment modify the requirements of international law, it may without impropriety express its own view as to what they demand, and in so doing announce a rule for the guidance of its courts.

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§ 258. Other Foreign Public Property.

The matter of the exemption from local jurisdiction of public property belonging to a foreign State and other than its vessels, is affected by the principle that a foreign sovereign cannot be sued without its consent. The attempt, therefore, to make it a party defendant and incidentally attach its property, must fail.1 If such a sovereign invokes the aid of a local court of equity in order to acquire possession of property to the title of which it has succeeded, it may, doubtless, be fairly deterred from taking possession without satisfying a lien accruing prior to its ownership.2 While a foreign State, on becoming a plaintiff, subjects itself to the obligation to satisfy a set-off arising out of the same action, it does not expose itself to the defense of a proceeding setting up another claim in respect of another and entirely distinct matter.3 Such a State by bringing suit does not subject itself to a counterclaim on which an affirmative judgment is asked.*

With respect to property owned by a foreign sovereign, exemption is yielded, according to American judicial opinion, when the owner or its agent has possession.5 When it lacks possession, the

1 Hassard v. United States of Mexico, 61 N. Y. Supp. 939, affirmed in 173 N. Y. 645 (commented on by John W. Foster, in Yale Law J., IX, 283-286); Mason v. Intercolonial Ry., 197 Mass. 349 (commented on in Mich. Law Rev., VI, 575); Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341; also De Haber v. Queen of Portugal, 17 Q. B. 196; The Parlement Belge, L. R. 5 P. D. 197. See, also, Nathan Wolfman, "Sovereigns as Defendants", Am. J., IV, 373; Charles H. Weston, Actions against the Property of Sovereigns", Harvard Law Rev., XXXII, 266.

2 United States of America v. Prioleau, 35 L. J. Chancery, N. s. 7, Moore, Dig., I, 64.

3 Kingdom of Roumania v. Guaranty Trust Co., 250 Fed. 341, reversing 244 Fed. 195; People v. Dennison, 84 N. Y. 272.

See, also, South African Republic v. Compagnie Franco-Belge, 1898, 1 Ch. Div. 190, 195, citing Duke of Brunswick v. King of Hanover, 6 Beav. 38; situation in case of Von Hellfeld v. Russian Government, Prussian Court for Determination of Jurisdictional Conflicts, 1910, Am. J., V. 490.

In the case of Mighell v. Sultan of Jahore, 1 Q. B. 1894, 149, the exceptional situation was noted in the case in which a foreign sovereign might be named as defendant for the purpose of giving him notice of the claim which the plaintiff made to funds in the hands of a third person or trustee over which the court had jurisdiction. See, also, Strousberg v. Republic of Costa Rica, 44 Law Times R., 199.

• French Republic v. Inland Nav. Company, 263 Fed. 410.

In the case of Mason v. Intercolonial Ry. Co., 197 Mass. 349, the property

property may be attached; but there is a constant requirement that no foreign sovereign be made a party defendant.

1

It may be urged that the scope of the exemption should be as broad as that demanded for and applicable to vessel property, and that dedication to a public service of a foreign sovereign rather than ownership or possession by it should afford the test of immunity. Certain American cases declaring possession to be essential to exemption of foreign public property, do not appear to assert a different rule from what is assumed or declared to be applicable to vessels. It should be noted, however, that Chief Justice Marshall in the case of The Schooner Exchange v. McFaddon, observed that there was under certain circumstances a distinction between the two classes of property. While it must be constantly borne in mind that the reason for the immunity of a sovereign from the process of its own courts is not that which gives rise to the exemption of a foreign State from local jurisdiction, and that grounds for the restriction of the immunity in the former case are not necessarily decisive in the latter, it is not believed to be arbitrary to require in the case of property other than vessels a somewhat narrower basis of exemption. It is hardly unreasonable to disregard the mere fact of dedication to the public service of a foreign sovereign, if it is neither the owner nor possessor of the property. If, however, a foreign public

was in the possession of trustees in behalf of the defendant company which was the property of a foreign sovereign. The court deemed itself to be without the right to take jurisdiction in an action of trustee process against the trustees. See, also, dictum in Tucker v. Alexandroff, 183 U. S. 424, 440.

1 See The Johnson Lighterage Co. No. 24, 231 Fed. 365; Long v. The Tampico, 16 Fed. 491; also dictum in The Carlo Poma, 259 Fed. 369, 370.

In the case of Vavasseur v. Krupp, L. R. 9 Ch. Div. 351, Moore, Dig., II, 591, the Mikado of Japan was permitted to remove from British territory shells brought from Germany to England for the use of Japanese vessels of war there building, notwithstanding the attempt of local patentees claiming infringement of their rights as such, to prevent persons in possession of the shells from delivering them to those vessels.

2 C. H. Weston, in Harv. Law Rev., XXXII, 266, 270-271.

3 Thus he declared: "Without indicating any opinion on this question, it may safely be affirmed, that there is a manifest distinction between the pri vate property of the person who happens to be a prince, and that military force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be presumed to do, with respect to any portion of that armed force, which upholds his crown, and the nation he is intrusted to govern." 7 Cranch, 116, 145.

Obviously this distinction cannot be taken to stand for more than the reason behind it; but it seems to be important partly as suggesting that others might be made which also should be entitled to respect.

sovereign establishes the ownership, and demands possession and control, it is greatly to be doubted whether absence of possession should destroy the claim of exemption, at least in a case where no adverse lien has attached to the property prior to the sovereign's acquisition of title.1

It may be observed that the increasing tendency of States to acquire property abroad, and thus to participate in foreign commerce, oftentimes in a mode similar to that of a private trader, calls for general agreement establishing the effect of public ownership and of the particular uses of what is acquired, upon the duty of the territorial sovereign to yield exemption from jurisdiction. The problem is closely associated with that arising from the nationalization of vessel property engaged in commercial enterprise. If the law of nations is to remain flexibly responsive to the requirements of international intercourse, definite principles should be enunciated and agreed upon, and these must serve to safeguard and promote, rather than jeopardize and retard the commercial transactions of private concerns with foreign States.

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Extraterritorial Jurisdiction

$259. In General.

(a)

For centuries before the establishment of international law the commercial cities of Europe exercised certain privileges of jurisdiction over their own merchants living in foreign places where trade was enjoyed.2 The merchants of a particular city or na

1 See, for example, Vavasseur v. Krupp, L. R. 9 Ch. Div. 351.

2 See, in general, with respect to the relation of the United States to the exercise of extraterritorial jurisdiction, Consular Regulations (1896), Sections 612-653; documents in Moore, Dig., II, 693-727; Instructions to American diplomatic officers (1897), Sections 82-93, 200-240; Philip M. Brown, Foreigners in Turkey: Their Juridical Status, Princeton, 1914; The Nature of the Jurisdiction of the United States Courts Established in Foreign Countries, Harv. Law Rev., XXI, 437; E. M. Borchard, Diplomatic Protection, §§ 180 and 202; Frank E. Hinckley, American Consular Jurisdiction in the Orient, Washington, 1906; Report on Citizenship of the United States, Expatriation, and Protection Abroad, by Messrs. J. B. Scott, David J. Hill, and Gaillard Hunt, 59 Cong., 2 Sess., H. Doc. No. 326; James B. Angell, "The Turkish Capitulations", Am. Hist. Assn., Annual Report, I, 513; Edward A. Van Dyck, Reports on the Capitulations of the Ottoman Empire, Senate Ex. Doc. No. 3, 46 Cong., Special Session, and Senate Ex. Doc. No. 87, 47 Cong., 1 Sess.

Cf., also, generally, Pierre Arminjon, Étrangers et protégés dans L'Empire Ottoman, Paris, 1903; Marcel Baudez, La Condition Juridique des Etrangers en Chine, Paris, 1913; E. L. Déligeorges, Die Kapitulationen der Türkei,

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.2 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.

1E. 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. 1-15 449

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.2 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. 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.

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

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.

5

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.