File No. 19790/2.
The Acting Secretary of State to Chargé Fletcher.
Washington, July 30, 1909.
Sir: The department acknowledges the receipt of the legation’s No. 1137, of April 13, 1909, relative to the form of passport which the Chinese Government proposes issuing to nationals of countries which have no treaty relations with China and who desire to travel in the interior of China, and in which it is requested that the department express its views upon the subject of protection by the United States to citizens of nontreaty nations.
The contention of the Chinese Government that treaty powers have no jurisdiction over citizens of nontreaty nations, judged by the well-established rules of international law, would seem to be valid, and the contention put forth by some of the treaty powers that “extraterritoriality is a natural right” would seem to be groundless and supported by no recognized authority on international law, at least in so far as can be ascertained.
The view taken by the Chinese Government in this matter has on previous occasions been approved by the department. In a report submitted to Congress by the Secretary of State in a letter dated December 18, 1906, it was stated that—
If it be asked what extraterritorial authority is exercised by the United States Government in any country, the answer must be found, first, in the treaty conferring extraterritoriality, and, second, in the statutes of the United States providing for the exercise of extraterritorial power by American consular [Page 70] and diplomatic officers. That is to say, the question concerns itself, first, with international law and treaty, and, second, with our own municipal law.
In accordance, therefore, with the views above expressed, you will, if the matter is submitted to the diplomatic body for its consideration, assent to the Chinese Government’s proposal, in such a way, however, as to avoid any inference of relinquishment of that jurisdiction indicated by Hinckley in the following passage, on page 78 of his work entitled “American Consular Jurisdiction in the Orient:”
So far as extraterritorial privileges are involved, American nationality includes all persons, whatever their civil status, who owe allegiance to the United States either as citizens by birth or by naturalization, or as native inhabitants of the insular possessions, or as seamen on American ships, or as assistants or guards in legations and consulates, or, to a limited extent, as employees of American citizens in oriental countries.
I am, etc.,