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 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.

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.1 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. By virtue of the right

5

1 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.

3 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

of the United States to determine when it will extend its extraterritorial protection, it has been decided by the Department of State that naturalized citizens in extraterritorial countries are practically on an equal footing with naturalized citizens in other countries, except that the conditions necessary to overcome the presumption of expatriation, particularly with respect to missionaries, are somewhat more liberal.1

Seamen serving on American vessels, regardless of their nationality, are considered subject to the extraterritorial jurisdiction of the United States, and entitled to its protection.2 British law and practice, on the other hand, merely protect all seamen on British vessels, but seamen who are not British subjects cannot be tried by a British consular court. They are turned over to the consul of the country of which they are nationals.3

DELEGATED PROTECTION

§ 204. Accompanying Conditions.

The government of the United States or American representatives abroad have from time to time been called upon by friendly powers or by the nationals of these powers abroad to extend the protection of the American diplomatic or consular officers at places where the friendly power had no official representative. Under such circumstances, the United States has usually authorized its representatives to employ their good offices on behalf of the subjects of the country. making the request, but has on numerous occasions taken pains to make it clear (1) that the consul or minister must act informally and unofficially only; (2) that while he becomes the agent of the foreign No. 340, July 27, 1914, Citizenship of children born of American fathers who have never resided in the United States.

4

1 Sec. 2 of Act of March 2, 1907. Circular of December 11, 1907, Expatriation and protection of Americans in Turkish dominions. Ibid. as to China, circular of May 13, 1908, infra, p. 707.

2 Hinckley, 87; In re Ross, 140 U. S. 453; Koo, Status of aliens in China, New York, 1912, pp. 199–200. Some countries, e. g., Denmark, consider the jurisdiction concurrent, i. e., the national consul of the seaman and of the flag of the vessel have concurrent jurisdiction.

Hall, 141-142; H. Doc. 326, 59th Cong., 2nd sess., 206.

In one case, in 1871, the American minister at Caracas was authorized, with the consent of Venezula (which was granted), to present certain claims of Italian subjects.

government in behalf of whose nationals he acts, to which government he is responsible for the discharge of his duties, he is not its official representative; (3) that the acquiescence of the government to which the agent is accredited shall be a necessary condition to the exercise of his delegated authority; and (4) that whenever the exigencies of the situation render it possible-which is always the case where the request proceeds from the foreign government seeking the assistance— the consent of his own government and of the alien's government in whose behalf he acts shall be first obtained.1

The question has been raised whether the local government must consent to the exercise of such delegated or substituted authority.2 In the absence of abnormal conditions when necessity or humanity requires prompt action and warrants a departure from strict rules, it is believed that the assent of the local government,-which as a rule is formally given upon request-is an essential condition.3

$205. Occasions of Exercise.

Governments request another government to act for them in the protection of their nationals (1) when they have no treaty relations with or when the number of their subjects in a certain third state is too small to warrant having an official representative permanently there resident, or (2) when they have broken off diplomatic relations

Moore's Dig. IV, 591. Other governments, e. g., Germany, do not appear to limit their exercise of delegated protection so strictly. The United States has on several occasions forbidden its diplomatic officers to present the claims of foreigners to governments to which they are accredited, without specific instructions. When permitted, the act is usually limited merely to transmission of the papers.

1 Many cases of delegated protection are reviewed or extracts from the correspondence quoted in Moore's Dig. IV, §§ 653-655. See Inst. to Dipl. officers of the U. S. (1897), § 172; Consular Regulations, 1896, § 174. The rule is well expressed by Act'g Sec'y Bacon in For. Rel., 1907, pp. 583-584, and For. Rel., 1908, pp. 210-211. See especially the Department's Circular Instruction of August 17, 1914, 9 A. J. I. L. (1915), Supplement, 118-120.

2 Tchernoff, p. 386.

3 When the United States in 1896 requested of Costa Rica permission to exercise good offices on behalf of Chinese subjects, Costa Rica refused assent on the ground that Chinese immigration is prohibited by law. For. Rel., 1896, pp. 377-380. See also case in 1867 when Mexico demurred to certain U. S. representations on behalf of French and Belgian subjects. Dipl. Cor., 1867, II, 447.

3

4

with the third state and have withdrawn their official representatives.1 Under the first head, the United States, at the request of the Swiss,2 Cuban, Chinese, British 5 and other governments, has on different occasions authorized its representatives abroad to extend their good offices to nationals of those states in various countries, particularly in Central and South America. It has frequently happened that in times of civil disturbance in Latin-American countries the United States has not awaited a request for protection from European or other governments, but has instructed its diplomatic and consular representatives and at times its naval officers to extend temporary protection, whenever needed, to the nationals of foreign countries." British official representatives have frequently protected American interests in Turkey and other places in the Near East.8

In the case of every rupture of friendly relations between two powers, resulting in the reciprocal withdrawal of official representatives, the interests of the respective countries in the other state are turned over

1

1 Anzilotti in 13 R. G. D. I. P. (1906), 10. Tchernoff, 383 et seq. The matter is sometimes regulated by treaty in which two countries agree to extend their protection to subjects of the other when unrepresented in a third country, e. g., treaty between France and Japan, Sept. 14, 1909, 39 Clunet (1912), 72-79 (patents, trademarks and copyright). Germany undertakes to protect subjects of Austria, Switzerland and Luxemburg in countries where the latter have no representatives. Laband, III, 31. See Pradier-Fodéré, III, § 1373, citing several treaties concluded between Latin-American states.

Circulars of Sec'y of State Fish, June 16, 1871, For. Rel., 1871, p. 28; Dec. 15, 1871, For. Rel., 1872, p. 5; Sec'y Bayard to Mr. Kloss, July 1, 1887, For. Rel., 1887, p. 1077 and other notes and instructions printed in Moore's Dig. IV, § 654. * Circular of Sec'y of State Hay, May 24, 1902, For. Rel., 1902, p. 6. 'In Guatemala, For. Rel., 1894, pp. 175, 331; ibid. 1896, pp. 377-380; in Nicaragua and Salvador, ibid. 1897, pp. 94–99, 425; in Panama, ibid. 1902, p. 318; In Chile and Ecuador, ibid. 1908, p. 59. See also other volumes of For. Rel. since 1900.

In Bolivia, For. Rel., 1902, pp. 101-102, 528.

⚫ Danish interests in Salvador, For. Rel., 1902, p. 836. As to U. S. protection of foreigners in Greece see For. Rel., 1907, pp. 583-584.

7 See, e. g., Sec'y Root to Minister Furniss (Haiti), Dec. 5, 1908, For. Rel., 1908, p. 442; Belgian interests in Haiti, For. Rel., 1902, p. 98; Instructions to Mexico, 1912-1914, Dept. of State.

$ H. Doc. 326, 59th Cong., 2nd sess., 208; For. Rel., 1902, 521 (Bulgaria). See also the arbitration protocol between France and Haiti, Sept. 10, 1913, art. 1, by which France undertook to present claims of Ottoman subjects against Haiti to a French-Haitian tribunal. 8 A. J. I. L. (1914), Supp. 144, 145.