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.*

$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. 8. 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.' 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.

(b)

§ 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.

citizenship had lacked Turkish authorization was not, however, admitted by the United States to afford a just ground for expulsion.1

A foreign seaman upon enrollment as a member of the crew of a vessel is said to owe temporary allegiance to the State to which the ship belongs, and in return therefor to be entitled to invoke the power of that State for his own protection. Thus for purposes of extraterritorial jurisdiction, a seaman enrolled on an American vessel is regarded both by the political and judicial departments of the Government of the United States as of American nationality.2 Notwithstanding the occasional extension of good offices of American consular officials in countries where extraterritorial privileges have been accorded, in behalf and for the protection of nationals of so-called non-treaty States, the United States has declined to exercise jurisdiction with respect to such individuals save with the express consent of the territorial sovereign.3 Turkey appears at times to have yielded assent; but China has been disposed to withhold it."

4

1 Mr. Gresham, Secy. of State, to Mr. Terrell, Minister to Turkey, March 29, 1894, For. Rel. 1894, 754.

2 Mr. Blaine, Secy. of State, to Sir E. Thornton, June 3, 1881, MS. Notes, Great Britain, XVIII, 543, Moore, Dig., II, 606; United States Consular Regulations, § 629, p. 268, Moore, Dig., II, 610; In re Ross, 140 U. S. 453. "British courts can only exercise criminal jurisdiction over British subjects, and persons to whom the privileges of subjects have been regularly extended; they consequently have no power to try a foreign seaman belonging to a British ship for any offence committed within or without the territorial jurisdiction." Hall, Foreign Jurisdiction, 142.

3 Instructions of Mr. Gresham, Secy. of State, to Mr. Denby, Jr., American Chargé, 1894, For. Rel. 1894, 106, 117, 119 and 124, in the course of which Mr. Gresham said: "The consuls of the United States in China . . . have never been invested with power to exercise jurisdiction over the citizens or subjects of another nation," id., 119, 121. See also Mr. Adee, Second Asst. Secy. of State, to Mr. Grant, Consular Officer at Cairo, Oct. 22, 1890, 134, MS. Inst. Consuls, 598, Moore, Dig., II, 754.

The exercise of protection by a State over its own nationals, citizens or persons of foreign nationality resident in a foreign country, does not necessarily call for the exercise of jurisdiction. In so far as it does not, the problems incidental to protection arising in Oriental countries, where certain extraterritorial privileges are enjoyed, do not differ in kind from those arising in western States of European civilization. Hall, Jurisdiction, 134, quoted in Report on Citizenship of the United States, by Messrs. Scott, Hill and Hunt, 203. It has long been the policy of the United States not to endeavor to become the protector, for purposes of jurisdiction or otherwise, of aliens resident in countries where extraterritorial privileges are secured, save under circumstances observed in the text. See documents contained in Moore, Dig., II. 727-755. 4 Notwithstanding any willingness on the part of Turkey to permit the protection of an alien by a country of his choice, the Department of State has adverted to the fact that such concession "cannot constrain us to treat an alien on the footing of our treaties as a citizen, nor constrain the Government of the individual to respect his voluntary choice of another protection than that flowing from his natural allegiance." Mr. Adee, Second-Asst. Secy. of State, to Mr. Grant, American Consular Officer, No. 56, Oct. 22, 1890, MS. Inst. Consuls, 595, Moore, Dig., II, 753.

5 See Report on Citizenship, by Messrs. Scott, Hill and Hunt, 208; Hinck

The claim of jurisdiction with respect to guards or assistants in legations and consulates, has been based upon the theory that the official duties of such persons in the public service of the United States should not be subject to interference by vexatious suits, save by some process enabling the agency of government to safeguard its own interests.1

There seems to be less reason to assert jurisdiction with respect to the native servant employed by a merchant or citizen of a State enjoying extraterritorial privileges. The former lacks that peculiar relationship to the State of his employer which exists in the case of a seaman on one of its merchant vessels, or of an assistant attached to a consulate. Nevertheless, the practice has arisen, especially in China, of yielding certain exemptions with respect to native servants.2

§ 262. Classes of Actions.

(c)

The several treaties of the United States with countries yielding extraterritorial jurisdiction have manifested a resemblance in the concession of jurisdiction over American citizens charged with the commission of offenses commonly regarded as criminal. Or

ley, American Consular Jurisdiction of the Orient, 89, citing For. Rel. 1873, II, 139.

In 1909, the Department of State made the following significant statement in the course of an instruction to Mr. Fletcher, American Chargé at Peking: "The contention of the Chinese Government that treaty powers have no jurisdiction over citizens of non-treaty nations, judged by the well-established rules of international law, would seem to be valid, and the contention put forth by some of the treaty powers that 'extraterritoriality is a natural right' would seem to be groundless and supported by no recognized authority on international law, at least in so far as can be ascertained." For. Rel. 1909, 69. See, also, Aide-mémoire to the Russian Embassy at Washington, Oct. 11, 1910, in which the Department of State declared that the Government had uniformly taken the position that "by consenting to lend its good offices in behalf of subjects of other nations, it could not assume to assimilate such subjects to citizens of the United States and to invest them with extraterritorial rights which they did not enjoy as subjects of the country of their allegiance." For. Rel. 1910, 838.

1 Mr. Angell, American Minister, to the Turkish Minister of Foreign Affairs, April 23, 1898, For. Rel. 1898, 1110, 1111; also case of arrest in 1899, of Cavass of the American Consulate at Smyrna, For. Rel. 1900, 920-934, especially Mr. Griscom, American Minister, to Mr. Hay, Secy. of State, Jan. 13, 1900, id., 928, Moore, Dig., II, 744.

"It is the policy of the United States to limit to as few as may be absolutely necessary the persons exempt from the local jurisdiction through their being attached to legations and consulates as assistants, guards or servants and to maintain with firmness the protection of those who are thus engaged." Hinckley, 85.

Mr. Hay, Secy. of State, to Mr. Conger, Minister to China, Jan. 8, Feb. 10, and Feb. 26, 1900, For. Rel. 1900, 396, 399 and 401, Moore, Dig., II, 599. Compare Mr. Rives, Asst. Secy. of State, to Mr. Ropes, April 28, 1888, 168 MS. Dom. Let. 239, Moore, Dig., II, 600.

3 Arts. XX and XXI of treaty with Morocco of January, 1787, Malloy's