vessel of the United States, under the "favored-nation" clause of the treaty, such a concession having been made to France. Speed, At. Gen., 1866, 11 Op. 508. In a note to the Siamese Government of October 31, 1899, Mr. King, United States minister at Bangkok, demanded the return of the revolver and sword of a citizen of the United States which were seized and taken from him by a native constable. In the course of his note Mr. King maintained that the provision in the British treaty that" British subjects, their persons, homes, premises, lands, ships, or property of any kind shall not be seized, injured, or in any way interfered with by the Siamese," applied equally to United States citizens under the most-favored-nation clause, and that the entire jurisdiction over the interests of the United States in Siam belonged excusively to the consulate-general of the United States. As the demand was not at first complied with it was renewed, with the result that the Siamese Government caused the arms to be returned and afterwards wrote a letter of explanation. Of the action of the minister, the Department of State expressed its general approval. For. Rel. 1899, 676-678. See, also, as to jurisdiction in Siam, Mr. Adee, Act. Sec. of State, to Mr. Heard, min. to Corea, Oct. 27, 1890, MS. Inst. Corea, I. 353. As to the right of a British subject in Siam to elect a Siamese, as distinguished from a British consular jurisdiction, see London Saturday Review, March 26, 1887, 443. In dealing with the subject of extraterritorial jurisdiction, the fact should be borne in mind that while the system rests, in the Ottoman dominions, upon ancient custom as well as upon the provisions of treaties or so-called capitulations, it was established in China and in Japan by the treaties with the western powers, the first being that concluded between Great Britain and China, at the end of the opium war, in 1842. The importance of this distinction is obvious. It serves to explain the existence in the Ottoman dominions of practices which were not based upon the stipulations of treaties and which formed no part of the extraterritorial system as it was established in China and Japan. Of these practices the principal one is that of the protection granted by the consuls of treaty powers-to the citizens of other treaty powers or to the citizens of nontreaty powers, or even to natives, not by the mere exercise of good offices, but by the assimilation of the person protected to the nationality of the protector. The question whether foreigners who were not citizens or subjects of treaty powers were entitled to extraterritoriality in Japan, was decided in the case of the Peruvian bark Maria Luz, which put into Kanagawa under stress of weather in 1872 with a cargo of coolies from China to Peru. The Japanese authorities claimed and exercised the power to inquire into the situation and condition of the coolies on board the bark, and released some of them. Against this action the master protested, and the Peruvian Government, though not a treaty power, supported his claims, which were at length referred to the arbitration of the Emperor of Russia. May 17-29, 1875, the Emperor rendered an award, holding that the Japanese Government had acted in good faith and within its rights, and declaring that foreign governments could not, in the absence of formal treaty stipulations, object to the enforcement by Japan of measures which were in conformity with their own legislation. Moore, Int. Arbitrations, V. 5034; For. Rel. 1873, I. 524–553. The consul of the United States at Canton, having exercised jurisdiction over a citizen of New Granada (Colombia) in a criminal matter, the Department of State said that the consul "had no authority whatever to entertain jurisdiction of the case," even with the concurrent consent of the accused and of the Chinese officials; that a consular court, being "a tribunal of limited and inferior jurisdiction," possessed only such powers as were expressly conferred by acts of Congress in conformity with the provisions of existing treaties; that the waiver of their authority by the Chinese officials invested the consul with no additional powers, since he was not an officer of that Government and could not derive from it any authority which would validate an official act not warranted by the laws of the United States or his instructions. Mr. Fish, Sec. of State, to Mr. Low, min. to China, Jan. 8, 1873, For. See, also, Mr. Hale, Asst. Sec. of State, to Mr. Jewell, consul at Canton, During the Chinese-Japanese war the diplomatic and consular representatives of the United States used their good offices for the protection of Japanese in China and of Chinese in Japan. In August, 1894, while the war was in progress, two Japanese subjects were, at the instance of the Chinese authorities, arrested by the French police in the French concession at Shanghai. The French consul-general sent the prisoners, who were charged with being spies, to Mr. Jernigan, the United States consul-general. Mr. Jernigan stated that the rule prevailing at Shanghai was, when a foreigner had no consular representative, that he was tried before the mixed court. He there fore disclaimed any right to try the prisoners, and asked for instructions as to what he should do with them, meanwhile granting them asylum. Instructions were given by Mr. Gresham, Secretary of State, to the effect that lending good offices did not invest Japanese in China with extraterritoriality, and that the legation and consulates should not be made an asylum for Japanese who violated the local laws or committed belligerent acts; that protection was to be exercised unofficially and consistently with neutrality; that the consul-general should not have received the two Japanese and was not authorized to hold them, and that the suggestion which had been made that the United States consuls should act as arbitrators in the matter was not entertained. Reference was also made by Mr. Gresham to the fact that by the Japanese imperial ordinance of August 4, 1894, declaring that a state of war existed between China and Japan, it was declared that Chinese subjects in Japan were wholly subject to the jurisdiction of the Japanese courts, thus abrogating the provisions of Article XIII. of the treaty between China and Japan of September 13, 1871, by which it was provided, in case an offense was committed in the juris diction of one of the contracting parties by a subject of the other, that "when arrested and brought up for trial, the offender, if at a port, shall be tried by the local authority and the consul together. In the interior, he shall be tried and dealt with by the local authority, who will officially communicate the facts of the case to the consul." The abrogation of this article had, said Mr. Gresham, necessarily the same effect in China as in Japan, and the United States could not invest Japanese subjects in China or Chinese subjects in Japan with an extraterritoriality which they did not possess as subjects of their own sovereign. In a subsequent instruction Mr. Gresham stated that the decision in the case of the two suspected Japanese was entirely in conformity with the Japanese interpretation of the authority and power of neutral consuls. He stated in conclusion that he would be glad to see an arrangement made between China and other interested powers which should define the jurisdictional rights of the foreign settlement at Shanghai with respect to crimes charged to have been committed therein in time of war, as well as in time of peace. Continuing, he said: " Whether China would be willing to yield her jurisdiction in respect to subjects of a belligerent charged with offenses against the laws of war, may be doubtful. It is not supposed that any of the French subjects to whom the dispatch of our legation refers as having been brought before the Russian consul at Shanghai for hearing, during the Tonquin war, were charged with offenses of that character. However this may be, the consuls of the United States in China, as has been pointed out in prior instructions of the Department, have never been invested with power to exercise jurisdiction over the citizens or subjects of another nation. "The Department had repeatedly so held, even in respect to citizens of Switzerland, who have for many years been under the protection of our ministers and consuls. It may also be noticed that Hall, in his recent work on Extraterritoriality in the East, adverts to the fact that, while what is known as the doctrine of assimilation has prevailed in Turkey and certain other countries, the British orders in council touching consular jurisdiction in China do not purport to authorize the exercise of such jurisdiction by British consuls except in the case of British subjects." Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé, tel., Aug. 29, 1894; same to same, Sept. 18 and Oct. 30, 1894; and Mr. Gresham, Sec. of State, to Mr. Yang Yü, Chinese legation, Nov. 30, 1894, For. Rel. 1894, 106, 117, 119, 121, 124. July 25, 1872, the Department of State, in an instruction to the United States minister in China, referring to the protection of Swiss citizens where the Swiss Republic had no diplomatic or consular officers, said: “The protection referred to must necessarily be confined to the personal and unofficial good offices of such functionaries. Although when exercised to this extent merely, this can properly be done only with the consent of the Chinese Government, that consent must not be allowed to imply an obligation on the part of a diplomatic or consular officer of the United States in that country to assume criminal or civil jurisdiction over Swiss citizens, or to make himself or his Government accountable for their acts." (Quoted in Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé, Aug. 29, 1894, For. Rel. 1894, 106.) The chief of police of Chinkiang having arrested and punished two Chinese employees of Mr. Emery, an American merchant at that place, "without even notifying the [American] consul or requesting him to have them turned over to the Chinese officials, a proceeding flagrantly violating the practice in such cases which has grown up under the treaties in all the treaty ports," the demand of the consul that the chief of police, who had fled to Soochow, should be required to return to Chinkiang and apologize to the merchant (in whose office one of the employees was arrested), and should be punished and degraded, was approved; and the minister of the United States at Pekin was instructed, in case the matter was not disposed of satisfactorily by the local authorities, to bring it to the attention of the Tsungli Yamen. Mr. Hay, Sec. of State, to Mr. Conger, min. to China, Jan. 8, Feb. 10, and The local authorities had expressed their readiness to degrade the • Mr. Conger. min. to China, to Mr. Hay, Sec. of State, Dec. 20, 1899, For. Rel. 1900, 394. A native of Comoro, domiciled in Zanzibar, died there in the service of a citizen of the United States, who complained that the viceconsul of the United States at Zanzibar refused to take jurisdiction of the decedent's estate. The Department of State said that if decedent had been a citizen of the United States, domiciled at Zanzibar, it would be disposed to maintain on the general principles of the law of nations, that the consul had jurisdiction;" but that the fact that decedent was in the employ of an American citizen "did not confer on him such an American status as will subject his estate to extraterritorial jurisdiction." It would, however, be the duty of the vice-consul to protect, so far as he could, any interest the citizen in question might have in decedent's estate as a creditor, if that interest. should be in jeopardy by reason of the imperfection of the local processes of administration. Mr. Rives, Assist. Sec. of State, to Mr. Ropes, April 28, 1888, 168 MS. For a discussion, without definite conclusion, of the question of asserting For a condemnation of the practice of indiscriminate protection which 2. NATIONALITY AS A LIMITATION. § 260. Defendants. Under the system of extraterritoriality the exemption of the alien from the operation of the local law is not complete, since he is as a rule dependent upon that law for the redress of injuries, civil or criminal, received at the hands of natives of the country. For such injuries the native must, as a rule, be proceeded against in the courts of his sovereign. The jurisdiction of the ministers and consuls usually is limited to proceedings against persons of their own nationality. In this sense nationality operates as a limitation upon the jurisdiction; and in the same way the nationality of the plaintiff, or even of a witness, may, in certain contingencies, raise an obstacle to the effective exercise of jurisdiction. On consideration of their contract with the Egyptian government, the opinion was expressed that Col. Cornelius Hunt and certain other citizens of the United States, who had entered the military or naval service of the Khedive, might be parties as plaintiffs or defendants |