unusual in the legislation of other countries, and tend to prevent the miscarriage of justice.

And President McKinley, in his second annual message of December 5, 1898, renewed the recommendation of his predecessor.

No legislative action has resulted from either of these recommendations, nor, in the case of our treaty with Mexico, where it was specially stipulated that a clause permitting transit rights should await the action of congress to make it effective, has any step been taken toward the desired end. It would seem useless to argue in favor of the advantages of such an enactment. It is hoped that in the near future, legislation with this object in view will become an accomplished fact. Let it not be said. that the United States is behind other nations in the punishment of crime; and let it be made plain, that in the mind of all thinking people, a common criminal is an enemy of the human race, an international outlaw, to be seized wherever he may be found, and returned without let or hindrance by the most convenient way to the country against whose laws. he has transgressed.

EXTRATERRITORIALITY AND THE UNITED STATES COURT FOR CHINA

In the western parts of the world, alien merchants mix in the society of the natives, access and intermixture are permitted; and they become incorporated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the society of the nation; they continue strangers and sojourners as their fathers were-Doris amara suam non intermiscuit undam-not acquiring any national character under the general sovereignty of the country. (Lord Stowell in the Indian Chief, 1801, 3 Charles Robinson, p. 12).

Extraterritorial jurisdiction is a survival of, or a reversion to, the time when sovereignty was personal rather than territorial, when there was a king of the English rather than a king of England. It means the establishment of an imperium in imperio. It means the legal recognition of the existence of a foreign colony in a native state whose members remain in the picturesque language of Lord Stowell, "immiscible," perpetuating their own institutions, governed by their own laws and responsible to their own officers.

Secretary Frelinghuysen in defining extraterritoriality with special reference to the practice of the United States described it as a condition in which

the national sovereignty of law is transferred bodily into a foreign soil and made applicable to citizens or subjects of its own nationality dwelling there. (Letter to

Hon. William Windom, chairman of the committee on foreign relations, United States Senate, April 29, 1882, Senate Miscellaneous Documents, 89, 47th Congress.) First Session, p. 1.

Extraterritoriality is of ancient origin.

The consul was originally an officer of large judicial as well as commercial powers, exercising entire municipal authority over his countrymen in the country to which he was accredited. But the changed circumstances of Europe and the prevalence of civil order in the several Christian states have had the effect of greatly modifying the powers of the consular office. (Denise v. Hale, 91 U. S. 1516.)

But the peculiar status of the municipal colonies organized by the Latin Christians and especially by those of the Italian republics in the Levant, growing out of the racial antipathies and still keener religious rivalry between the Latin merchants and the Greeks among whom they settled and traded, perpetuated the original jurisdiction of the consular office long after it had lost its political significance in the western world. (See opinion of Atty. Gen. Cushing, 7 Opinions Atty. Gen. 342, at 346.) The coming of the Mahomedan only increased the necessity for extraterritoriality. Mahomedan religion and Mahomedan law were indissolubly connected. The perpetuation of extraterritoriality, far from being regarded as a concession to the strength and superior intelligence of the western Christians, was an inevitable consequence of the unwillingness of the Mahomedan courts to attempt to administer justice among aliens who were not merely enemies but were regarded as unclean. The Mahomedan refused to extend his law over the western Christians for a reason not unlike that which has prevented the United States from extending its laws over transactions between Indians upon Indian reservations. (See Sec. Bayard to Mr. Straus, Foreign Relations, 1887, pp. 1094-1095.)

During the centuries immediately preceding the discovery of America, the Italian republics obtained from the Christian emperors, and later from their Mahomedan conquerors, numerous charters granting protection for commerce and exemption from local administration, for their mercantile colonies in the Levant. These charters consisting of articles or "capitula" acquired the name of "capitulations," a term now in general use to denote the early treaties by which Turkey conceded extraterritoriality to the nations of the western world. (Hinckley: American Consular Jurisdiction in the Orient, pp. 2 and 3). In this manner, extraterritoriality has gradually changed from the rule to the exception. The powers of the consular office have dwindled until

it may now be considered as generally true that for any judicial powers which may be vested in the consuls accredited to any nation, we must look to the express pro

visions of the treaties entered into with that nation and to the laws of the states which the consuls represent. (Denise v. Hale, supra.)

When the United States became a nation it found the system of extraterritoriality already firmly established in usage and secured by treaty provisions between the nations of the Orient and the western powers. Just as the United States accepted international law itself, so it accepted the principle of extraterritoriality and at once proceeded to negotiate treaties securing for its citizens exemption from local jurisdiction in the semi-barbarous countries of the Orient. The United States early negotiated treaties securing the privileges of extraterritoriality in various minor Mahomedan states; the treaty with Morocco being negotiated in 1787; with Tunis, 1797; with Tripoli, 1805; and with Algiers, 1815. Indeed, it is a curious and interesting fact that one of the earliest treaties recognizing a qualified form of extraterritoriality was concluded between the United States and France, namely the treaty of November 14, 1788, negotiated by Jefferson, which contains a provision that all differences and suits between citizens of the United States and France shall be determined by the American consuls and vice consuls, either by reference to arbitrators or by summary judgments without costs.

It was natural, if not inevitable, that when the barriers of exclusion within which China and Japan had isolated themselves for centuries gave way and a limited intercourse with the western world was permitted, that the principle of extraterritoriality should be included in the treaties securing to the citizens of the western nations the right to reside and carry on trade within the treaty ports. China conceded extraterritorial privileges to Great Britain in 1842 and 1843, and to the United States in 1844, while Japan conceded civil extraterritoriality to the United States in 1857, and in the treaty of 1858 provided for extraterritorial jurisdiction in both civil and criminal cases.

The United States has always regarded the exercise of extraterritoriality as a necessary evil, and has always been inclined to take a conservative view of the scope of the powers conferred by the grant of extraterritorial privileges. An interesting illustration of both of these statements is found in the negotiation of an extradition treaty with Japan on April 29, 1886, at the very time that negotiations were pending between Japan and the western powers for the relinquishment of extraterritoriality. The United States, through the negotiation of this treaty, at one and the same time conceded, by implication, that the grant of extraterritoriality did not, when properly construed, imply the power to extradite, contrary to the position maintained by England and other countries, and through its willingness to conclude such a treaty, and

the confidence thus manifested in the ability and impartiality of the Japanese courts, it lent its moral support to the Japanese contention that the time had come for the abandonment of extraterritorial privileges in Japan, and contributed materially to the successful conclusion of the negotiations through which extraterritoriality was finally abandoned by all the powers, and Japan placed in all respects upon the footing of a modern civilized power.

The traditional American policy in respect to extraterritoriality is embodied in the treaty provisions with Corea and China (treaty with Corea of May 22, 1888, article 4; treaty with China of October 8, 1903, article 15), in which the United States expressly agrees to relinquish extraterritorial privileges as soon as the judicial administration of these countries shall be so reformed as to warrant such action.

The treaty provisions under which extraterritoriality in China is exercised today are articles 21, 24, 25 and 29 of the treaty of July 3, 1844; article 11 of the treaty of June 18, 1858; and article 11 of the treaty of November 17, 1880. The combined effect of these treaties is to confer complete civil and criminal extraterritoriality upon citizens of the United States residing in China, to be exercised

by the consul or other functionary of the United States thereto authorized.
The exceptions and qualifications to complete extraterritoriality arise
only in cases in which citizens of the United States become involved in
controversies with citizens of China or of some other foreign power. In
the first case the treaties provide that the questions arising

shall be examined and decided conformably to justice and equity by the public
officers of the two nations acting in conjunction,

while in cases of the latter class, custom has long since established the rule that the court of the nation of which the defendant is a subject or citizen shall have jurisdiction.

While it is true that extraterritoriality is an exception to the ordinary principle of international law which asserts the exclusive jurisdiction of every nation within the limits of its own territory and all extraterritorial rights, internationally speaking, must be founded upon treaty provisions, according to the constitution and municipal law of the United States, special statutory authority is necessary in order to provide for the exercise of the powers secured by the treaty except in so far as treaties may be self-operative, in which case they would need no further legislative reinforcement. Congress has made legislative provision for enforcing the extraterritorial rights of the United States upon three

separate occasions; namely, by the act of August 11, 1848, 9 Statutes at Large 276; the act of June 22, 1860, 12 Statutes at Large, p. 72; the act of July 1, 1870, 16 Statutes at Large, p. 183. Minor amendments were also introduced by the act of March 3, 1873, chapter 249, 17 Statutes at Large 582; the act of June 14, 1878, chapter 193, 20 Statutes at Large, 131. These various provisions are consolidated in the Revised Statutes, §§4083-4130. The substance of all this legislation has been summarized in an opinion of Attorney General Cushing of September 19, 1855, and it may be well noted in passing that in the learned and comprehensive opinions of Attorney-General Cushing may be found the clearest and almost the only authoritative discussion of the scope and meaning of American extraterritoriality in the Orient.

In order to execute these treaties-to carry the laws of the United States into Turkey and China-to have our territorial jurisdiction follow our people and our flag into those empires-persons clothed with lawful authority are the necessary instruments. * * *

Accordingly, the statute contains the following important provision:

That such jurisdiction in criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute said treaty, extended over all citizens of the United States in China (and over all others to the extent that the terms of the treaty justify or require), so far as such laws are suitable to carry said treaty into effect; but in all cases where such laws are not adapted to the object or are deficient in the provisions necessary to furnish suitable remedies, the common law shall be extended in like manner over such citizens and others in China; and if defects still remain to be supplied and neither the common law nor the statutes of the United States furnish appropriate and suitable remedies, the commissioner shall, by degrees and regulations which shall have the force of law, supply such defects and deficiencies." The system of law is composed, therefore, of:

1. The laws of the United States, comprehending the constitution treaties, acts of congress, equity and admiralty law, and the law of nations, public and private, as administered by the supreme court, and circuit and district courts of the United States, and, in certain cases, regulations of the executive departments.

2. "The common law." In this respect, the statute furnishes a code of laws for the great mass of civil or municipal duties, rights, and relations of men, such as, within the United States, are of the resort of the courts of the several states.

Some general code in these respects became necessary, because the law of the United States-that is, the federal legislation-does not include these matters, and, of itself, would be of no avail toward determining any of the questions of property, succession, the contract, which constitute the staple matter of ordinary life.

For such of the states as were founded in whole or chief part by colonists from Great Britain and Ireland, or their descendants, the law of England, as it existed in each of those states at the time of their separation from Great Britain, with such modifications as that law had undergone by the operation of colonial adjudication, legislation, or usage, became the common law of such independent state.

Meantime, in addition to many changes, differing among themselves, which the