The United States always demands for its own nationals abroad the enjoyment of as large privileges of religious freedom as are accorded the nationals of other States.1 In all matters relating thereto it uniformly enjoins upon its diplomatic officers and upon its citizens, the duty to exercise a careful regard for the sensibilities of foreign native peoples. However deeply interested in the cause of religious liberty, and however disposed to express friendly suggestions in that regard to other powers, the United States does not undertake to plead the cause of aliens within foreign lands, save in cases where their religious persecution is conceived to be directly injurious to the rights of the nation or of its citizens.5

4

It has been observed that by the terms of the treaty concluded by the Principal Associated and Allied Powers with Poland in June, 1919, arrangement was made for the protection of religious as well as of racial and linguistic minorities in the latter state.

216. American Missionaries in Eastern Countries.

In the Turkish Empire, as a result of the first Capitulations, there occurred what Mr. Engelhardt described as "an abdication ... of absolute autonomy in religious matters." 7 Nor was

State, of Feb. 17, 1906, concerning the status of non-Catholic religious denominations in Spain, For. Rel. 1906, II. 1351; see, also, Mr. Day, Secy. of State, to the Rev. Mr. Strong, June 3, 1898, 229 MS. Dom. Let. 113, Moore, Dig., II, 178.

Mr. Root, Secy. of State, to Mr. Leishman, Minister to Turkey, Dec. 14, 1905, For. Rel. 1906, II, 1377.

2 Mr. Hay, Secy. of State, to Mr. Bridgman, Minister to Bolivia, Sept. 1, 1899, For. Rel. 1899, 112, Moore, Dig., II, 179; Mr. Fish, Secy. of State, to Mr. Adee, Chargé at Madrid, Dec. 8, 1876, MS. Inst. Spain, XVIII, 52, Moore, Dig., II, 175; Mr. Frelinghuysen, Secy. of State, to Mr. Wallace, Minister to Turkey, Jan. 9, 1884, MS. Inst. Turkey, IV, 77, Moore, Dig., VI, 336; Mr. Bayard, Secy. of State, to Mr. Jackson, July 17, 1885, MS. Inst. Mexico, XXI, 329, Moore, Dig., VI, 337.

Mr. Seward, Secy. of State, to the Rt. Rev. Horatio Potter, Nov. 23, 1866, 74 MS. Dom. Let. 417, Moore, Dig., II, 172; Mr. Hay, Secy. of State, to Mr. Bridgman, Minister to Bolivia, Sept. 1, 1899, For. Rel. 1899, 112, Moore, Dig., II, 179.

4 Mr. Cass, Secy. of State, to Mr. Williams, Oct. 22, 1860, MS. Inst. Turkey, II, 27, Moore, Dig., VI, 333; Mr. Frelinghuysen, Secy. of State, to Mr. Gifford, Dec. 19, 1884, 153 MS. Dom. Let. 470, Moore, Dig., VI, 339; Mr. Day, Secy. of State, to the Rev. Mr. Strong, June 3, 1898, 229 MS. Dom. Let. 113, Moore, Dig., II, 178.

5

Supra, § 55. Compare, Mr. Hay, Secy, of State, to Mr. Wilson, Minister to Roumania, July 17, 1902, For. Rel. 1902, 910, Moore, Dig., VI. 362 Mr. Hay, Secy. of State, to American Representatives at London, Paris, Berlin, St. Petersburg, Vienna, Rome, and Constantinople, Aug. 11, 1902, For. Rel. 1902, 42, Moore, Dig., VI, 365.

Treatment of Nationals, supra, § 55. See British Treaty Series No. 8, 1919 [Cmd. 223].

Translated from an article entitled "Le Droit d'Intervention et la Turquie".

AMERICAN MISSIONARIES IN EASTERN COUNTRIES [§ 216

the Porte ever able to regain complete control of what had been relinquished at a time before international law was established. As a result, the United States long denied the right of the Ottoman Government to restrict in various ways the activities of American missionaries there engaged in propagating Christianity. The United States protested, for example, against the closing of established places of worship found to be without an imperial permit, as required under existing, although obsolete laws; it insisted that the conversion of a dwelling house into a chapel or school without the sanction of such a permit did not justify local interference; it complained of the rigor of the censorship of religious literature; 2 it objected to the persecution of Turkish subjects employed by or otherwise connected with American missionary institutions.3

In China, the United States acquired, by treaty, rights of religious freedom for American citizens in the domain of that State. Discrimination against native Chinese converts to Christianity has been protested against; indemnification of those persecuted by reason of their faith has been urged; and finally, by treaty the United States has secured assurance of complete protection for such individuals.4

Rev. Droit Int., 1 ser., XII, 363, 373, 375, quoted in Moore, Dig., V, 813-814. See, also, Mr. Bayard, Secy. of State, to Mr. Straus, Minister to Turkey, April 20, 1887, For. Rel. 1887, 1094, Moore, Dig., V, 802; Mr. Blaine, Secy. of State, to Mr. Hirsch, Minister to Turkey, Dec. 14, 1891, For. Rel. 1892, 527, Moore, Dig., V, 831. See, also, infra, § 259–261.

1 Mr. Foster, Secy. of State, to Mr. Thompson, Minister to Turkey, Nov. 29, 1892, For. Rel. 1892, 609, 611-612, Moore, Dig., V, 822; Mr. Blaine, Secy. of State, to Mr. Hirsch, Minister to Turkey, Dec. 14, 1891, For. Rel. 1892, 527, Moore, Dig., V, 831; President Harrison, Annual Message, Dec. 6, 1892, For. Rel. 1892, xv, Moore, Dig., V, 823; Mr. Wharton, Acting Secy. of State, to Mr. MacNutt, No. 249, Oct. 1, 1891, For. Rel. 1891, 757, Moore, Dig., V, 832, note.

2 See documents cited in Moore, Dig., V, 829-830; also correspondence concerning restrictions upon the sale of the Bible contained in For. Rel. 1905, 898-911, and id., 1906, II, 1414-1416.

3 Mr. Bayard, Secy. of State, to Mr. Straus, Minister to Turkey, April 20, 1887, For. Rel. 1887, 1094, Moore, Dig., V, 802; Mr. Blaine, Secy. of State, to Mr. Hirsch, Minister to Turkey, Dec. 14, 1891, For. Rel. 1892, 527, Moore, Dig., V, 831; Mr. Gresham, Secy. of State, to Mr. Newberry, Chargé d'Affaires ad. int., May 15, 1893, 632, Moore, Dig., V, 825, note d; Mr. Adee, Acting Secy. of State, to Mr. Terrell, Minister to Turkey, Sept. 6, 1895, For. Rel. 1895, II, 1281–1282, Moore, Dig., V, 827. James Harry Scott, The Law Affecting Foreigners in Egypt, Edinburgh, 1907, Chap. VII, "Religious Protection."

4 Art. XXIX treaty between the United States and China of June 18, 1858, Malloy's Treaties, I, 220; Art. IV treaty of July 28, 1868, id., I, 235; Art. XIV treaty of Oct. 8, 1903, id., I, 268. See, also, Mr. Denby, Minister to China, to the Tsung-li Yamên, April 9, 1897, For. Rel. 1897, 83, Moore, Dig., V, 459; Mr. Hay, Secy. of State, to Mr. Conger, Minister to China, Oct. 30, 1900, For. Rel. 1900, 224, Moore, Dig., V, 460–461.

§ 217. Freedom of Speech.

(v)

A State may exercise a censorship over what is written and spoken within its territory. No power can justly complain because its nationals within a foreign country are not, in accordance with the local law, permitted to enjoy entire freedom of speech. In countries where liberal forms of government prevail, such a right may be lodged in the people, as in the case of the United States, where it is guaranteed by the Constitution.2 The Department of State has always denied the existence of any duty on the part of the Government to suppress public utterances regarded as hostile to other friendly States. In its dealings with China, however, where the press is controlled by a governmental censorship as a matter of public police, and where publications in various forms have been circulated which have served to endanger the safety of the lives and property of foreign residents, the United States has frequently requested the suppression of anti-foreign publications.4

It is not believed that any duty imposed upon a territorial sovereign to check utterances within its domain proving to be injurious to the safety of a foreign State could be removed by

1 Mr. Fish, Secy. of State, to Mr. Washburne, March 1, 1873, MS. Inst. France, XIX, 67, Moore, Dig., II, 166.

2 The First Amendment declares that Congress shall make no law "abridging the freedom of speech, or of the press."

Mr. Seward, Secy. of State, to Blacque Bey, Turkish Minister, Jan. 20, 1869, MS. Notes to Turkey, I, 29, Moore, Dig., II, 164; Mr. Fish, Secy. of State, to Mr. Roberts, Spanish Minister, June 1, 1869, MS. Notes to Spanish Legation, VIII, 280, Moore, Dig., II, 165; Same to Mr. Robb, Feb. 25, 1873, 98 MS. Dom. Let. 12, Moore, Dig., II, 165; Mr. Blaine, Secy. of State, to Mr. Hirsch, Minister to Turkey, Jan. 7, 1891, MS. Inst. Turkey, V, 194, Moore, Dig., II. 167; Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, Dec. 4, 1883, MS. Inst. Great Britain, XXVII, 69; same to same, Nov. 24, 1884, id., 349, Moore, Dig., II. 170.

See, also, Mr. Knox, Secy. of State, to the Mexican Ambassador, Jan. 23, 1911, For. Rel. 1911, 393; same to same, June 7, 1911, where it was said: "I need not point out to your excellency that this free speech and freedom of the press are two of the most sacred rights guaranteed by the Constitution of this country; that they are absolutely inviolable rights; and that although it may for a moment appear that such rights should be to a greater or less extent curtailed, a continuous national growth and development of more than a century and a quarter demonstrates beyond the possibility of a doubt that the public intelligence necessary to a firm and permanent stability and progress requires that such rights shall remain inviolate."

Mr. Blaine, Secy. of State, to Mr. Denby, Minister to China, Dec. 3, 1889, MS. Inst. China, IV, 475, Moore, Dig., II, 166. See, also, correspondence with China in 1905, relative to an anti-American boycott in that country, For. Rel. 1905, 204-234, particularly Mr. Root, Secy. of State, to the Chinese Minister, Nov. 14, 1905, id., 232.

FREEDOM OF SPEECH

[§ 217

virtue of a constitutional provision guaranteeing freedom of speech to the inhabitants. Such an instrument could establish no valid excuse for non-performance of an obligation laid down by international law. As yet there appears, however, no indication that that law charges a State with a duty not to guarantee freedom of speech to those who inhabit its territory.

The exercise of jurisdiction, that is, of the right of doing justice, requires a decision by a State first, as to the lawfulness or unlawfulness of acts; and secondly, as to the effect to be given to lawful or unlawful acts. These decisions are distinct in kind. The object of the former is to attach a legal quality to an act, and so to establish its character. The object of the latter is to fix the degree of respect to be paid to the legal character already impressed upon an act.

The right to pass upon the lawfulness of an act must necessarily be the exclusive possession of a single sovereign. Otherwise, as has oftentimes been observed, differing legal consequences might be annexed to the same act, rendering it both lawful and unlawful. The right must also, therefore, in every case, belong to that sovereign or political power which exercises control over the place where the particular act is committed. Thus it is that a State may determine the lawfulness of acts committed through

1 Declared Mr. Jefferson, Secy. of State, in the course of a communication to Mr. Morris, Minister to France, Aug. 16, 1793: "Every nation has, of natural right, entirely and exclusively, all the jurisdiction which may be rightfully exercised in the territory it occupies. If it cedes any portion of that jurisdiction to judges appointed by another nation, the limits of their power must depend on the instrument of cession." Am. State Pap., For. Rel., I, 167, 169. Also id., I, 147-148. See, also, Marshall, C. J., in Schooner Exchange v. McFaddon, 7 Cranch, 116, 136; Papayanni v. Russian Steam Navigation Co., 2 Moore's Privy Council Cases, N. s., 161; Beale, Cases on Conflict of Laws, I, 87.

2 Grosscup, J., in Swift v. Philadelphia & R. R. Co., 64 Fed. 59, 65; Beale, Cases on Conflict of Laws, III. Summary, § 11.

3 Holmes, J., in American Banana Co. v. United Fruit Co., 213 U.S. 347, 355-357.