A LETTER FROM THE SECRETARY OF STATE ΤΟ THE CHAIRMAN OF THE SENATE COMMITTEE CONCERNING THE JUDICIAL EXERCISE OF EXTRATERRITORIAL RIGHTS 1st Session. No. 89. LETTER FROM THE SECRETARY OF STATE. ADDRESSED TO HON. WM. WINDOM, CHAIRMAN COMMITTEE ON FOREIGN RELATIONS, AND OTHER PAPERS, Relative to the exercise of judicial extraterritorial rights conferred upon the United States. MAY 4, 1882.-Referred to the Committee on Foreign Relations and ordered to be printed, to accompany bill S. 1828. DEPARTMENT OF STATE, Hon. WILLIAM WINDOM, Chairman Committee on Foreign Relations, United States Senate : SIR: In reply to your note of the 28th March last, I have the honor to lay before you some suggestions respecting amendments to existing laws regulating the exercise of judicial extraterritorial rights conferred upon the United States, together with a draft for legislation which it is supposed may carry out such suggestions. For convenience, I divide what I have to say into separate subjects, with distinct headings. 1.- WHAT IS EXTRATERRITORIALITY? I can best show what extraterritoriality is by quoting the language of the British act (6 & 7 Victoria, Chap. XCIV; see Appendix IV) conferring power to exercise it. The act says That it is and shall be lawful for Her Majesty to hold, exercise, and enjoy any power or jurisdiction which Her Majesty now hath or may at any time hereafter have within any country or place out of Her Majesty's dominions, in the same and as ample a manner as if Her Majesty had accquired such power or jurisdiction by the cession or conquest of territory. The national sovereignty and law is transferred bodily into a foreign soil, and made applicable to citizens or subjects of its own nationality dwelling there. It regulates their rights as between themselves, and as between themselves and natives, absolutely. As between them and resident foreigners of other nationalities, it would regulate their rights absolutely but for the fact that the different settlements of the Christian nationalities generally live together, and make mutual concessions to each other, sometimes by custom, and sometimes by written agreements. 2.-ITS NECESSITY. As part of the public law of Europe, it took its rise in the conflict between Islamism and the principles of the Roman law. After the Greek Empire fell, its commerce with the West remained. The Christian traders of foreign nationalities claimed and obtained the right to be exempt from the rules of the Koran, and to be governed by their own laws derived from Rome. How far removed the Koran was and is from our own principles for the administration of justice may be gathered from the following extracts from a recent dispatch from our minister at Constantinople: # * The rule of the "sacred law" making Christians incompetent as witnesses against Turks is one of the marvels of Mussulman jurisprudence. Hearing that such a rule actually existed I had Mr. look up the volume containing the law upon the subject, and he has it now in possession. Itake the liberty of quoting from it points of plainest application. Thus, in the category of the inadmissible (as witnesses), I find the following: Players of backgammon, though chess-players are admissible under certain conditions; such as that they do not spend all their time at the game, that they do not play for money, and that they fail not in their times of prayer on account of the game. So, wine-drinkers and pork-eaters, because of the prohibition in the Koran; so of those who eat bread in the streets; so of those who utter blasphemies against Mahomet and his disciples; so of those who make water standing, because in doing so the urine may spatter upon their legs and they be made unclean, so that they cannot go into a mosque for prayers; so, Jews may testify against Christians, and Christians against Jews, and foreigners against non-Mussulmans; but under this permission is couched the prohibition forbidding any of them testifying against a Mussulman. So, the testimony of a woman counts for but half; that is to say, two women are required to make one witness. You will see the full force of these canons when I remark that if objection be made to a witness the objection shall be justified. Suppose a Christian called to testify against a Turk in a Mussulman court, and his competency put in question. If he does not play backgammon; if he does not drink wine or eat pork; if he does not eat bread in the streets; if he have not uttered blasphemy against the prophet or his disciples; still how shall he swear that he never makes water standing? Or suppose the case of an outrage upon a Christian woman, and no witness but herself. The rights thus obtained from Turkey (originally for the French, from which fact all Europeans were termed Franks) have been extended by subsequent "capitulations" and treaties, and devolve upon citizens of the United States by a treaty which confers it in words as we understand it. But as the English text is disputed by the Turks it comes to us also by the favored-nation clause; so that in any event, as the matter is viewed by the Department of State, there is no reasonable question of our right of extraterritorial jurisdiction in the Ottoman Dominions over Americans charged with the commission of crimes. The same rights have been obtained in Persia, China, Japan, Siam, and other nations, and for like reasons. The civilization of the Christian countries of Europe rests upon the equitable principles of Roman law, which through all changes have permeated and influenced their institutions. In Turkey these principles were uprooted, and in China, and Japan, &c., they never took root at all. In a memorandum inclosed by Mr. George F. Seward in his dispatch No. 505, dated November 18, 1879 (see Foreign Relations, 1880, page 155), it is said: There can be no doubt that the state of the Chinese judicial establishment, as it affects foreigners, is unsatisfactory. No code of procedure, worthy to be called such, exists. The magistrates, secretaries, and constables are often corrupt. Judgments are secured only after a great deal of exertion, and persistent efforts have to be made to secure their execution. And again, page 159: Scattered through the various reports are allegations that offenders who are sent to the district magistrate for trial generally appear upon the streets in a day or two, and that those who are sentenced by the mixed court magistrate to the bamboo, the cangue or confinement, frequently evade the punishment to which they have been sentenced. In civil matters the payment of judgments is generally sought to be enforced by imprisonment, but judgment debtors are not held if they fall ill, and whether as the result of the very bad sanitary condition of the prison, or of "mild poisons taken for the purpose," they often fall ill and escape further difficulty. I venture to think that the weight of testimony establishes that it is absolutely necessary that the rights which we enjoy in this respect should be preserved, and carefully and vigorously enforced. 3.-LEGISLATION TO ENFORCE IT. Turkey has "capitulations" with France, Great Britain, Holland, Austria, Russia, Sweden, Denmark, Germany, Spain, Italy (Sardinia), Belgium, Portugal, Greece, Brazil, and the United States; and China, Japan, Persia, Siam, &c., have treaties with many or all of these powers. I have not the means in the Department for stating to the committee the character of all the legislation enacted to exercise the rights conferred by these capitulations and treaties. If I had, it would be manifestly undesirable to weary the committee by stating it. It will be sufficient to compare the legislation of France, Great Britain, and the United States with each other. An examination of this comparative legislation will probably be sufficient to satisfy the committee how far the American in these foreign colonies fails to receive from his government the protection which is accorded to other foreigners. In estimating this it should also be borne in mind that these colonists, of different nationalities and living under different laws, generally form but one community, grouped together in one settlement, or concession, and frequently combining together, as will be seen hereafter, for municipal organization and government, but living apart so far as concerns their persons and their property. 4. THE FRENCH SYSTEM. The civil jurisdiction of the French consuls in the Turkish Empire and the Barbary States is still exercised in conformity with the provisious of the royal edict of June, 1778. I inclose a translation of so much of this edict as relates to civil jurisdiction. (See Appendix I.) The fundamental principle in this edict is that French laws, then existing or that might thereafter be enacted, were to be in force in and to govern the consular courts. This principle has been followed in the American statutes, in the British statutes and orders in council, and in the Italian laws. In Great Britain, Italy, and France it operates to extend their whole system of civil and general municipal law over the consulate and the colonies under their protection. In the case of the United States the act only extends to Federal legislation. This is, however, supplemented by extending also the provisions of equity and admiralty. Even with these provisions inserted, the American colonies enjoy the protection of a much narrower system of laws than the colonies of France and Great Britain. The forms of pleading and of procedure are to be adapted to those used in France, with a proviso that only the most simple and summary ways are to be adopted. The Sardinian law goes further than the French in providing that no nullity for mere matter of form shall be admitted, unless it leaves absolute uncertainty as to persons or subject of the suit. |