Exceptions to or

Jurisdiction. (4) Subjects of Western states resident in Eastern countries.

It is insisted upon owing to the defective character of Oriental administration of justice and the dependent puзition assigned to Christians by the sacred code of dinary rules about Islam. In consequence of these considerations the Christian states have obtained by treaty exemption from the local jurisdiction for their subjects resident in Turkey, the Barbary States, China, Japan, Siam, and other parts of the East still remaining under native rule. By Conventions with these powers authority over Europeans and Americans resident within their territories is given to Consular Courts. Thus Consuls, who among the Western nations are merely commercial agents, exercise in Oriental states important judicial functions, and possess large immunities conferred on them for the protection of their countrymen. Their jurisdiction is both civil and criminal. The manner of its exercise depends on the law of the country to which each Consul belongs and on treaty stipulations between that country and others. Generally subjects of the local sovereign who may commit any crime against subjects of a foreign state resident in their country are dealt with by the local tribunals; but subjects of a foreign state who may be charged with criminal offences against natives are tried in the Consular Courts of their own nation. In cases which arise between subjects of different foreign nationalities the aggrieved person can, in the absence of special treaty regulations, seek redress in the Consular Court of the country whose subject has done the wrong; and if two subjects of the same foreign nation stand to one another in the relation of accuser and accused, the case is tried in the court to whose authority both of them are subject. In civil matters questions which arise between a foreigner and a native are generally settled by a tribunal in which agents of both the foreign and the native state have a voice. When two or more foreigners of the same nationality are the parties to the suit it is tried in their own Consular Court; and when the dispute is one between

1 Japan has made such progress in civilization that the Western powers have recently abolished their Consular Courts in her territory and left their subjects to local jurisdiction. Great Britain led the way, and others followed.

foreigners of different nations it goes to the Consular Court of the defendant's country. As a rule there is an appeal in civil cases of great importance to the superior tribunals of the Consul's country; and in criminal cases the highest sentences cannot be passed without the ratification of the home authorities. Sometimes it is arranged that persons charged with grave crimes should be sent home for trial. In order to gain the protection of a Consul in the East it is necessary for subjects of the state he represents to register themselves at the Consulate. Registration of the head of a family implies registration of all members of the family living under the same roof. Throughout the Turkish Empire England has a network of Vice-Consular and Consular Courts culminating in the Court of the ConsulGeneral at Constantinople. Their authority, and the authority of her Consular Courts in other countries, is derived from the Foreign Jurisdiction Act of 1843 and Orders in Council made in pursuance of it. The authority of the Consular Courts of the United States rests upon an Act of Congress passed in 1860. But it must be noted that these acts and similar laws of other civilized and Christian powers could give no jurisdiction within the dominions of Oriental states, were it not for the treaties whereby the right to establish Consular Courts is expressly granted by the local sovereigns.1 In Egypt the Consular system was superseded in 1876, after negotiations extending over nearly ten years, by a system of Mixed Tribunals commonly called International Courts. The judges of these courts are partly natives and partly foreigners, the majority always belonging to the latter category. Their powers and functions are regulated by an elaborate code; and the appointment of the judges rests with the Egyptian administration, which is, however, bound in selecting the foreign members of the courts to act on the recommendation of their respective gov

1 Note on Consuls in Treaties of the United States, pp. 1279-1285; Halleck, International Law (Baker's ed.), Ch. XI.

ernments. Fourteen powers, including the United States, have assented to these arrangements,1 which are said to work much better than the old Consular Courts. They have been prolonged from time to time, the last occasion being in January, 1894.

There can be no doubt that abuses are likely to arise, owing to the large immunities given under the Consular system to subjects of Christian states in Oriental countries and the powerlessness of the local sovereign to enforce any authority over them. We have but to imagine a case in some remote district far from the influence of civilized public opinion, where the protected subject is a rascal and the local Consul careless or unscrupulous, to see what grave injustice might be done without the possibility of redress. Some states allow their Consuls to naturalize foreigners with great ease; and it is said that half the scoundrels of the Levant find it convenient to escape from the local jurisdiction in Morocco and the outlying parts of the Turkish Empire by obtaining some foreign nationality, under cover of which they cheat and plunder the natives with impunity. Too much care cannot be exercised by self-respecting Christian states in such matters. They must in the interests of their own people insist on some system of immunity; but they should not allow what is necessary to protect their subjects to become a means for the oppression of the subjects of the local sovereign. When countries hitherto governed by native rulers of the Oriental type pass under the sway of Christian and civilized powers, one of their first cares is to abolish the Consular Courts, so that they may become in reality masters in their own dominions; and the states who possess treaty rights to maintain such courts usually make no difficulty in renouncing them. Thus when France in 1881 established over the Tunisian Regency a protectorate which differed only in name from complete annexation, she commenced

1 Holland, The European Concert in the Eastern Question, pp. 102, 103, 128-147.

negotiations with the powers who had what is called Consular Capitulations with Tunis, and was able in 1884 to supersede the Consular Courts by French judges.1

§ 132.

Extradition. A

state is not bound

to grant it in the

absence of a treaty obliging it to do

We have now to consider the subject of Extradition, which may be defined as The surrender by one state to another of an individual who is found within the territory of the former, and is accused of having committed a crime within the territory of the latter. Such surrenders are usually made in pursuance of 50. treaty obligations, though there are not wanting cases where criminals have been given up in the absence of any stipulation on the subject. The earliest Extradition Treaty on record was negotiated about thirteen hundred years before Christ between Rameses II., King of Egypt (the Pharaoh who knew not Joseph), and Khitasir, King of the Khita. It provided for friendship and alliance between the two monarchs and for a strict return of fugitives from one another's dominions. But the example set at so remote a period has not been followed to any extent till recent times. The great mass of Extradition Treaties date from the present century and even from its latter half. They have been rendered necessary by the rapid growth of intercourse between peoples and the great preponderance of opinion in favor of the doctrine that crime is in the main territorial.

Writers on International Law have differed greatly on the question whether a state is bound to surrender fugitive criminals unless it has contracted to do so by treaty. The majority of them favor the negative view, and the same may be said of statesmen and judges. Each state must decide for itself whether in the absence of treaty stipula

1 Statesman's Year Book for 1894, p. 523; Twiss, Law of Nations, I., § 66.

2 Burgsch, Egypt and the Pharaohs, II., 71–76.

tions it will give up criminals or not; but it is now generally admitted that a surrender is a matter of comity and not of right. There is no rule of International Law commanding governments to return to one another fugitives from justice on demand from the country where the crime was committed. The practice of states differs. In America it is held that in the absence of a treaty there is no law which authorizes the President to deliver up any one charged with having committed a crime in the territory of a foreign nation, or at least that there are grave doubts as to his right to do so.1 Surrender was made in 1864 in the case of Arguelles, who was given up to the Spanish authorities for a crime of peculiarly atrocious character, though there was then no Extradition Treaty with Spain; and on that occasion the Senate interfered with a request to be informed under what authority of law or treaty the act was done. Mr. Seward, the Secretary of State, admitted in his reply that the United States was under no obligation to make the surrender, and justified his action on the grounds of comity and humanity. The attempts to stop the surrender failed, but the question of the power to make it was never judicially decided. The law of England appears to be strongly against surrender. It is held that the common law gives the executive no power to arrest an alien and deliver him to a foreign state. The Crown has a right to negotiate Extradition Treaties; but their provisions cannot be brought into effect without statutory authority. The Extradition Act of 1870 gives the Crown power by Order in Council to carry into effect all Extradition Treaties made in accordance with its terms; and in the United States Statutes passed in 1848 and 1860 enable the courts to act under duly proclaimed Extradition Treaties. Thus the two great English-speaking peoples have adopted practically the same principles in this im

1 Note on Extradition in Treaties of the United States, pp. 1289 and 1291. 2 Wheaton, International Law (Dana's ed.), p. 183, note

8 Clarke, Extradition, Ch. V.