CLASSES OF ACTIONS

[§ 262

that the exercise of such a right in such cases is to be regulated by a treaty between the United States and the outside power.1 Persia has permitted adjudication before the "respective consuls or agents" of the United States and the foreign power. In the absence of express provision, the territorial sovereign has commonly acquiesced in the exercise of jurisdiction by the proper officials of the State to which the defendant belongs.3 In controversies between American citizens and nationals of the country where extraterritorial privileges are enjoyed, the treaties have indicated unwillingness on the part of the territorial sovereign to give up jurisdiction, although provision has frequently been made for a limited participation by the foreign State at trials conducted by local judicial officers. Ordinarily no distinction has been made in the treaties of the United States, between cases in which an American citizen is plaintiff, and those in which he is defendant. Turkey, for example, according to the treaty of 1830, agreed to permit the American dragoman to be present at the trial; and causes in which the amount in controversy exceeded five hundred piasters were to be submitted to the Sublime Porte. Siam has consented that disputes arising between American citizens and Siamese subjects should be heard by the consul in conjunction

Hubbard, Jan. 16, 1894, 195 MS. Dom. Let. 166, Moore, Dig., II, 602; also statement in Moore, Dig., II, 600.

1 Treaties of 1844, and 1858. See, generally, V. K. Wellington Koo, The Status of Aliens in China, 1912, 166-228; Marcel Baudez, La condition juridique des étrangers en Chine, 1913, 60-201; Georges Soulié, Les droits conventionnels des étrangers en Chine, 1916, Chap. III.

2 Treaty of 1856.

Papayanni v. Russian Steam Navigation Co., 2 Moore's Privy P. C. C., N. S. 161, Moore, Dig. II, 667.

4 With respect to the practice which prevailed generally in Turkey, see Philip M. Brown, Foreigners in Turkey, Their Juridical Status, Chaps. III and IV, and documents there cited.

Mr. Cushing, Attorney-General, in an opinion, October 23, 1855, announced the following outline of the system of extraterritorial jurisdiction then prevailing in Turkey:

"1. Turkish tribunals for questions between subjects of the Porte and foreign Christians.

"2. Consular courts for the business of each nation of foreign Christians. "3. Trial of questions between foreign Christians of different nations in the consular court of the defendant's nation.

"4. Mixed tribunals of Turkish magistrates and foreign Christians at length substituted by common consent in part for cases between Turks and foreign Christians.

"5. Finally, for causes between foreign Christians, the substitution also, at length, of mixed tribunals in place of the separate consular courts, this arrangement introduced at first by the legations of Austria, Great Britain, France, and Russia, and then tacitly acceded to by the legations of other foreign Christians." 7 Ops. Attys.-Gen., 565, 569.

The foregoing statement was incorporated in Instructions to the Diplomatic Officers of the United States (1897), 84-85, and is given in Moore, Dig., II,

with the proper Siamese officials.1 China has permitted the case to be tried by the proper official of the nationality of the defendant, agreeing, however, that the properly authorized official of the plaintiff's nationality be permitted to attend the trial, enjoy facilities for watching the proceedings in the interest of justice, have the right to examine and cross-examine witnesses, and if dissatisfied with the proceedings, to protest against them in detail.2 Persia has permitted the presence at the trial of an agent of the United States, but seems to have lodged jurisdiction of all disputes between Persian subjects and citizens of the United States, in Persian tribunals.3

(d)

§ 263. Difficulties with Turkey. Article IV of Treaty of 1830.

There long existed a controversy between the United States and Turkey respecting the precise contents of the text of Article IV of the treaty of 1830, providing for extraterritorial privileges, and concerning the interpretation of that portion thereof declaring that the exercise of jurisdiction by American authority should follow "the usage observed towards other Franks."4 The Turkish 662. See, also, Dainese v. Hale, 91 U. S. 13; Dainese v. United States, 15 Ct. Cl. 64; Hinckley, 151-153.

Concerning the establishment and jurisdiction of mixed courts in Egypt, see documents in Moore, Dig., II, 722-727; also Hinckley, 153-158.

In December, 1906, the law officer of the Department of State expressed the opinion that jurisdiction over criminal libel committed by an American citizen in Egypt, was still vested in the American consular courts, and had not been transferred to the mixed tribunals. For. Rel. 1907, II, 1080; also id., 1076-1081.

Great Britain having in 1914 established a protectorate over Egypt, which was not thereafter regarded by the former as in any sense a dependency of Turkey, undertook to make careful provision for a revision of the judicial system of the country, and contemplated the ultimate withdrawal of extraterritorial privileges previously enjoyed by virtue of the Turkish Capitulations. As Prof. Philip M. Brown has well observed: "The suppression of the régime of the Capitulations in Egypt, with all its attendant evils of special immunities for foreigners, of a consequent failure to insure an even justice for all, and also of special political pretensions by the Powers enjoying these privileges, is a logical necessity once the domination of Great Britain is recognized." Editorial comment, "The Egyptian Capitulations", Am. J., XIÏ, 820, 822-823.

1 Treaty of 1856.

2 Treaty of 1880. Concerning the mixed court at Shanghai, see documents in Moore, Dig., II, 652–653, F. È. Hinckley, 163–173; For. Rel. 1906, I, 369

407.

3 Treaty of 1856.

4 The English text of the last sentence of the Article as contained in Malloy's Treaties, II, 1319, is as follows: "Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any

DIFFICULTIES WITH TURKEY

[§ 263 Government denied that the English text was a correct translation of the original Turkish version, contending that the latter did not in fact contain provision for the trial or punishment of an American citizen by his minister or consul.' That Government did, however, in 1888, submit what it stated to be a correct French translation of the Turkish text.2 In 1890, Mr. Blaine, Secretary of State, offered to yield the right of trial, and to accept the treatment accorded to certain European Powers, providing for trial by local authorities, in the presence of the dragoman of the American Legation, retaining, however, the right to punish the offender.3 The Turkish Government declined to yield that right, renewing in substance the contention that the reference to the usage to be observed towards other Franks was a limitation of the right granted, the scope of which was to be determined by the practice of the several Powers in 1830, and that they did not then claim the right to punish an offender. Mr. Blaine was unwilling to admit that the treaty of 1830 gave more than was at that time claimed by European States. He declared, however, that if, as had been suggested, the treaty had inadvertently granted the right to punish, and had thus given more than had been contemplated by the grantor, it was futile to deny the existence of the specific grant. He was likewise unwilling to depart from the stand taken by his predecessors, that the reference to the usage observed towards other Franks was explanatory of, rather than a limitation upon, what was yielded. The position of Mr. Blaine crime or offence, shall not be molested; and even when they have committed some offence they shall not be arrested and put in prison, by the local authorities, but they shall be tried by their Minister or Consul, and punished according to their offence, following, in this respect, the usage observed towards other Franks."

1 The original texts of the treaty were in the French and Turkish languages. An agreement was signed by the American Chargé d'Affaires prior to the exchange of ratifications, to the effect that the Turkish text should be held the correct one in case differences should arise between the contracting parties. Concerning the negotiation of the treaty and the dispute relative to Article IV, see documents in Moore, Dig., II, 668-714; correspondence in For. Rel. 1905, 885-898, with respect to the cases of Charles Vartanian and H. Afarian, especially Mr. Root, Secy. of State, to Mr. Leishman, Oct. 19, 1905; also F. E. Hinckley, 21-27.

See, also, in this connection, André Mandelstam, La justice ottomane, 1911, 154-174; Philip M. Brown, Foreigners in Turkey, 75-81.

The following is an English translation thereof: "American citizens peaceably attending to matters of commerce shall not be molested without cause so long as they shall not have committed any offense or fault. Even in case of culpability they shall not be imprisoned by the judges and police agents, but they shall be punished through the agency of their ministers and consuls, according to the practice observed in regard to other Franks." Blaine, Secy. of State, to Mr. Hirsch, Minister to Turkey, Dec. 22, 1890, and contained in For. Rel. 1900, 915, 917, Moore, Dig., II, 697, 701.

Mr.

was reaffirmed by Mr. Hay, Secretary of State, in 1901. The latter adverted to the fact that the extraterritorial right in question belonged to the United States by virtue of the most-favored-nation clause of the treaty, and that that right was given by the Ottoman Porte to Belgium by treaties of 1838 and 1862, and to Portugal by treaties of 1843 and 1868.1

(e)

§ 264. Legislation of the United States.

The legislative action of a State by means of which it fits itself to exercise extraterritorial jurisdiction, and incidentally to enable its officers to exercise judicial functions in foreign countries, is a matter of domestic rather than of international law. Brief attention may, however, well be called to certain aspects of the laws of the United States. Its statutes purport to be applicable to the several countries with which treaties have been or may be concluded, and also, as has been noted, to countries not inhabited

3

1 Note to Mr. Griscom, American Chargé, March 16, 1901, For. Rel. 1900, 914, Moore, Dig., II, 713. The texts of the treaties to which Mr. Hay referred are published in Noradounghian, those with Belgium of 1838 and 1862, respectively, in II, 243, and III, 160; those with Portugal of 1843 and 1868, respectively, in II, 354, and III, 263. Concerning the practice of certain European States relative to the trial and punishment of their subjects or citizens in Turkey, see communications received by Department of State in 1891, published in Moore, Dig., II, 714-722; also F. E. Hinckley, 26-27.

Adjustment of differences with Turkey may have been. retarded by reason of the scope of demands made in former years upon its Government. In 1895 Mr. Olney, Secy. of State, went so far as to assert that the United States was entitled to be represented by its dragoman at every stage of the criminal proceedings against a Turkish subject charged with the commission of an offense against an American citizen. See report to the President, Dec. 19, 1895, For. Rel. 1895, II, 1256, 1259, Moore, Dig., II, 666-667.

2 Report on Citizenship of the United States by Messrs. Scott, Hill and Hunt,

200.

3 The statutory law of the United States with respect to the powers of ministers and consuls, and consular courts, is embraced in Rev. Stat. §§ 40834091, U. S. Comp. Stat. 1918, §§ 7633-7641; Rev. Stat. §§ 4097-4122, U. S. Comp. Stat. 1918, §§ 7642-7667; and Rev. Stat. §§ 4126-4130, U. S. Comp. Stat. 1918, §§ 7672-7676.

Provision for the United States Court for China was made by the Act of June 30, 1906, Chap. 3934, 34 Stat. 814, U. S. Comp. Stat. 1918, §§ 76877695. Concerning the scope of the jurisdiction of the United States Court for China, see Swayne & Hoyt v. Everett, 255 Fed. 71.

By an Act of March 2, 1909, Chap. 235, 35 Stat. 679, U. S. Comp. Stat. 1918, § 7696, the judicial authority of the Consul-General of the United States at Shanghai was vested in and to be exercised by a vice-consul-general of the United States. By an Act of March 4, 1915, Chap. 145, 38 Stat. 1122, U. S. Comp. Stat. 1918, § 7696 a, the judicial authority formerly vested in the ConsulGeneral at Shanghai and transferred to the Vice-Consul-General was vested in and to be exercised by a vice-consul at Shanghai.

See, also, in this connection Moore, Dig., II, 613-637, and documents there cited; also Hinckley, American Consular Jurisdiction in the Orient, 41-69.

LEGISLATION OF THE UNITED STATES

[§ 264 by civilized peoples or recognized by any treaties with the United States.1 Specified officers are clothed with power to exercise rights of jurisdiction. Those specified are the ministers and consuls of the United States, and with respect to China, the United States Court for that country.2 Jurisdiction is to be exercised according to the laws of the United States, in so far as they are adapted to carrying the treaties into effect. When those laws are not so adapted, or are deficient in their provisions, the common law and the law of equity and of admiralty are declared to be applicable; and if none of the foregoing laws appear to furnish appropriate remedies, the ministers are empowered to make regulations which, it is said, shall have the force of law to supply such defects. In China, the power to make such regulations is lodged in the United States Court for that country. The statutes provide that a consular officer acting as a judge may be assisted by American citizens of good repute who shall be summoned to act as associate judges in the more important criminal and civil cases.4 This provision is restricted so as not to be applicable to the United States Court for China. Elaborate provision is made for appeals. The duty is imposed on American ministers and consuls to encourage the settlement of civil controversies by mutual agreement,

3

1 Extraterritorial Jurisdiction, In General, supra, §§ 259-260.

2 See Rev. Stat. § 4084, U. S. Comp. Stat. 1918, § 7634, respecting the jurisdiction to arraign and try American citizens charged with "offenses against law."

Rev. Stat. § 4085, U. S. Comp. Stat. 1918, § 7635, invests the officers "with all the judicial authority necessary to execute the provisions of such treaties, respectively, in regard to civil rights, whether of property or person."

According to Rev. Stat. § 4128, U. S. Comp. Stat. 1918, § 7674, judicial duties devolve upon the Secretary of State, who is authorized and required to discharge the same if at any time there be no minister in any of the countries previously mentioned in the title of the statute.

According to Rev. Stat. § 4109, U. S. Comp. Stat. 1918, § 7654, "The jurisdiction of such ministers in all matters of civil redress, or of crimes, except in capital cases for murder or insurrection against the governments of such countries, respectively, or for offenses against the public peace amounting to felony under the laws of the United States, shall be appellate only: Provided, that in cases where a consular officer is interested, either as party or witness, such minister shall have original jurisdiction."

3 Concerning the scope of the power to make regulations, see documents in Moore, Dig., II, 617–622.

Apparently the summoning of associate judges depends upon the opinion of the consular officer as to the legal difficulties involved in the particular case. See Rev. Stat. §§ 4106-4107, U. S. Comp. Stat. 1918, §§ 7651-7652.

5 See 5 of Act of June 30, 1906, 34 Stat. 816, U. S. Comp. Stat. 1918, $7691. This section provides also that the procedure of the Court for China shall be in accordance, so far as practicable, with the existing procedure prescribed for consular courts in China in accordance with the Revised Statutes of the United States: "Provided, however, that the judge of the said United States Court for China shall have authority from time to time to modify and supplement said rules of procedure."