File No. 393.00/3.
Aide-mémoire to the Russian Embassy.
Washington, October 11, 1910.
The question of the protection of the interests of foreigners, subjects or citizens of powers not having treaties with China, who might be sojourning or traveling in China, is one that has frequently come [Page 839] before the Government of the United States for consideration. The position uniformly taken by the Federal Government has been that by consenting to lend its good offices in behalf of subjects of other nations’, it could not assume to assimilate such subjects to citizens of the United States and to invest them with extraterritorial rights which they did not enjoy as subjects of the country of their allegiance. The American minister to China was informed in 1895 by the then Secretary of State, Mr. Gresham, that the consuls of the United States in China had never been invested with power to exercise jurisdiction over citizens or subjects of another nation, and that the Department of State has repeatedly so held in respect to citizens of Switzerland who had, for many years, been under the protection of ministers and consuls of the United States.
Moreover, the Supreme Court of the United States has held that the question of the jurisdiction of American consular courts in the Orient depends not merely upon international law and the provisions of the treaties, but also upon the statutory law of the United States which plainly provides for the exercise of such jurisdiction in criminal cases over American citizens only. In civil cases, also, while the statute is not so clear, the law officers of the Department of State are of the opinion that the jurisdiction is doubtful.
Consistently with this policy, which is determined by the limitations imposed by the Federal statutes, the American minister to China was instructed in July of last year,1 relative to the proposal of the Chinese Government to issue passports to, and assume jurisdiction over nationals of countries which had no treaty relations with China who might desire to travel in the interior of that Empire, that the Department of State was not in a position to question the right of the Chinese Government in the premises, provided no interference was contemplated with the extraterritorial privileges of any persons, whatever their civil status, who owed allegiance to the United States, or who were entitled, by international law or by usage, to the protection of the Government of the United States, as foreign seamen on American ships, or as assistants or guards in legations and consulates, or as employees of American citizens in China.
The Department of State therefore regrets its inability to comply with the request presented by the Russian Embassy to the Department of State in the embassy’s aide-mémoire of September 17 last; and, while appreciating the importance of concerted action in matters of common interest to the powers in China, it finds itself, for the reasons given above, under the necessity of refraining from participation in this present matter, so long as no action is taken or contemplated that would in any wise unfavorably affect American interests in China.