Occasional exceptions to the rule that citizenship is an essential condition to diplomatic protection have been made in cases where a foreigner was in imminent danger or placed under unusual circumstances requiring diplomatic assistance. Some of these exceptional cases will be referred to briefly. It may be said, however, that in rendering assistance to the citizens or subjects of a foreign government abroad this government, generally speaking, can only instruct its diplomatic representatives to extend their personal good offices in behalf of such persons, and such assistance does not ordinarily extend to matters in connection with the presentation and collection of claims against foreign governments. When such an individual foreigner invokes the protection of an American diplomatic or consular representative, the consent of the individual's government is, if possible, first obtained by the Department of State.1

After the war with Spain, when Spain relinquished her sovereignty over Cuba and before the Cubans acquired an independent status, the United States undertook to protect Cubans temporarily residing abroad by the use of the good offices of its representatives.2 It frequently occurs that in times of civil disturbance, especially in LatinAmerica, the United States diplomatic and consular officers extend protection to foreigners. By the exercise of the right of asylum, protection has often been extended to natives of those countries, when political refugees, or on grounds of humanity.3 The Department of State for some years, however, has discouraged the practice of asylum, because of its easy abuse. The peculiarly close relations of the United States to Panama, Nicaragua and the Dominican Republic, and a general desire to prevent foreign governments from taking aggressive action against the countries of Central America in support of claims has often led the United States to use its good offices to adjust pecuniary demands of foreign governments upon those republics.

In the protection of missionaries in Oriental countries, the United States has avoided the example of France, Russia, Great Britain and

1 Mr. Sherman, Sec'y of State, to Baron von Thielmann, Mar. 10, 1897 (protection of German vessel at Martinique). For. Rel., 1897, p. 183. See infra, § 204.

2 See circular of May 2, 1899, For. Rel., 1900, 894 and its application to various special cases as set forth in Moore's Dig. III, 295, 296.

3 See Leval, op. cit., §§ 15–17.

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Germany of extending their protection not only to their subjects but also to the members of Christian bodies or communities of the faiths so closely identified with their national history. The United States has followed the policy of extending protection to American citizens only, or to American interests in property devoted to religious purposes.1 Where American missionaries constitute a distinctive American community in an extraterritorial country, citizenship could, until 1914, be handed down from father to son without restriction as to those whose fathers had never resided in the United States.2 This privilege did not however extend to the children of naturalized citizens beyond the second generation. By a circular instruction of July 27, 1914, in which the whole matter was reconsidered, it was ruled by the Department of State, reversing a position which had been maintained since 1887, that the exception, in the case of extraterritorial communities, to the application of § 1993 of the Revised Statutes, by which citizenship had been held inheritable indefinitely regardless of the residence of the father in the United States, was altogether unjustified, and that the exception should be abolished. The occupation as a missionary in Turkey or China serves to overcome the presumption of expatriation on the part of a naturalized citizen leaving the United States for a period of two or five years, respectively, within the meaning of § 2 of the Act of March 2, 1907.5

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1 Mr. Adee to Sister Genevieve, Sept. 10, 1895, Moore's Dig. VI, 631; Sec'y Frelinghuysen to Mr. Gifford, Dec. 19, 1884, ibid. 639; Sec'y Cass to Mr. Williams, Oct. 22, 1860, ibid. 333 and extracts quoted in Moore's Dig. VI, § 922; Hinckley, F. E., American consular jurisdiction in the Orient, Washington, 1906, p. 108 et seq.; H. Doc. 326, 59th Cong., 2nd sess., 207, 208 and reference to For. Rel., 1887, p. 1094; 1891, p. 765; 1892, p. 609; 1895, II, pp. 1256, 1461, cited by Hinckley, p. 110. Article 14 of the treaty of 1903 between the U. S. and China deals with the rights of American missionaries and also indicates the policy of the U. S. A useful account of the protection accorded by the U. S. to missionaries abroad is presented in an article by J. B. Scott in 6 A. J. I. L. (1912), 70–85. A Johns Hopkins doctor's dissertation, Owens, O. L., The protection of American foreign missionaries by the United States, is announced for early publication.

2 Thus modifying § 1993, R. S.

3 Infra, § 332.

4 Special Instruction No. 340, July 27, 1914, with annexed opinion of Solicitor in Lilienthal's case.

Circular of Dec. 11, 1907 (Turkey), clause (d); Circular of May 13, 1908 (China), clause (e). Infra, p. 707.

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.4

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.

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.

5 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

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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.6 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 Boeuf, Paul, De la protection diplomatique et consulaire des indigènes au Maroc, Bergerac, 1905.

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

5 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.

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. 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.