NOTE. The organ through which states most commonly exercise their rights of jurisdiction in other countries is the consul. The functions of this officer have had a curious development which has been much misrepresented, especially in important judicial decisions concerning his powers. Until late in the Middle Ages law was thought of as personal rather than territorial. Wherever men went, their system of law, like their citizenship or allegiance, went with them. In consequence, when European merchants established themselves in the Levant and asked the consent of the local sovereign to appoint for themselves judges who would settle their controversies according to their own laws, the arrangement seemed entirely natural to both parties. The judge thus appointed by the merchants was usually called a consul. As early as 1060 the Greek emperor at Constantinople accorded this right to the Venetian merchants. In 1199, the Emperor Alexis III by his Bulla Aurea gave to the Venetian consuls the extraordinary right of deciding controversies not only between Venetians but also between Venetians and his own subjects. Such arrangements were not confined to the Levant. The Crusades were followed by an enormous expansion of commerce, and the Italian merchants who established themselves along the Baltic, in the Netherlands and in London, appointed consuls who exercised both a civil and a criminal jurisdiction. When their interests required it, the merchants of other countries adopted the same system, and in the fifteenth century English consuls who acted as judges were estab lished in Sweden, Norway, Denmark, the Netherlands and Italy. As the city state of the Middle Ages declined and the new kingdoms grew up two changes took place which revolutionized the office of consul. Law came to be looked upon as territorial rather than personal, and the consuls came to be government officials chosen by their governments and not by the merchants over whom they were to exercise jurisdiction. In consequence of the placing of law upon a territorial basis, states looked upon the presence of alien tribunals in their midst as in derogation of their dignity and an impairment of their sovereignty. Hence the consul was deprived of his judicial character in all countries except those in which there was some special reason for maintaining it. At first all the countries where such a jurisdic tion was retained were Mohammedan states, and their view that the blessings of Moslem jurisprudence were not for infidels assisted the states of Europe to retain their consular jurisdiction in the lands of the Prophet. Their jurisdiction at first rested on nothing more substantial than the tacit acquiescence of the Mohammedan princes, but in the case of Turkey it was explicitly confirmed and to some extent defined in a series of treaties dating from the sixteenth century known as the Capitulations. The preponderant position of France in the Ottoman dominions led citizens of other countries to place themselves under French protection, and even as late as 1830, when the United States made a treaty with Turkey, it was provided that the privileges therein described should be exercised according to the usage observed towards other Franks.

In all countries where the principle of exterritoriality has been applied in recent years, except only Turkey, the jurisdiction claimed

was the subject of an express grant by treaty. All such grants were made after the conception of law as territorial had been fully accepted by all members of the family of nations, and were therefore admittedly in derogation of the sovereignty of the states making the grant. Since a consul in such countries may exercise only that jurisdiction which the treaty confers, he is found in practice to have a much narrower jurisdiction than do the consuls in Turkey, many of whose powers are derived only from ancient use. In China, the United States exercises jurisdiction not only through its consuls, but at Shanghai, it has established the United States Court. For its powers and functions see Swayne & Hoyt v. Everett (1919), 255 Fed. 71, and Lobingier, Extraterritorial Cases.

In addition to the exercise of extraterritorial jurisdiction in such countries as Turkey, China and Morocco, the United States frequently extends a limited diplomatic protection over certain persons who are not American citizens and even over certain classes of natives. Foreigners who have no diplomatic or consular representative to whom they can appeal often ask for the good offices of the representatives of some western government. The necessity of providing for the protection of certain classes of natives has given rise to the protègè system. The classes protected vary in different countries. The system has been so much abused that the privilege of protection is now severely restricted and is usually confined to the translators, guards and other servants of diplomatic and consular representatives and the employees of foreign merchants. Some European governments also extend their protection to the native converts to Christianity, but the United States only stipulates in its treaties with Turkey and China that there shall be no discrimination against native Christians. See Borchard, secs. 202, 203.

Consular jurisdiction may be terminated (1) by treaty, as in the case of Japan; (2) by the leasing of the districts concerned, as in the case of Port Arthur, Wei-hai-Wei and Kiao-Chau in China, which were leased respectively by Russia, Great Britain and Germany; (3) by the establishment of a protectorate over the country concerned such as the French protectorate over Morocco; (4) by annexation, as in the case of the annexation of Madagascar by France and of Tripoli by Italy.

The countries in which the question of consular jurisdiction is now of most importance are Turkey, China and Persia. In 1914 Turkey gave notice of its intention to terminate the Capitulations, but the states concerned declined to acquiesce. When the United States in 1922 recognized the independence of Egypt, it expressly reserved its rights therein under the Capitulations.

While the law applied in a consular court is the law of the consul's country, it is applied to the settlement of the instant case because it has been adopted for cases of that kind by the territorial sovereign and hence becomes his law, Imperial Japanese Government v. P. & 0. Co. (1895), L. R. [1895] A. C. 644; Secretary of State v. Charlesworth (1900), L. R. (1901] A. C. 373. The question of exterritoriality is discussed from the standpoint of trade domicile in The Eumaeus

(1915), 1 Br. & Col. P. C. 605. A foreign consul may not set up a court in the United States without express authority from the American Government so to do, Glass v. The Betsey (1794), 3 Dallas, 6. Other important cases dealing with the general subject are The Indian Chief (1880), 3 C. Robinson, 12; Dainese v. Hale (1875), 91 U. S. 13. The provisions in the treaties made by the United States are collected in Moore, Extradition, I, 100, n. 5. See also Angell, "The Turkish Capitulations," Annual Report of the American Historical Association for 1900, I, 513; Nys, "La. Juridiction Consulaire," Revue de Droit International, 2nd series, VII, 237; Rey, La Protection Diplomatique et Consulaire dans les Echelles de Levant et de Barbarie; Willoughby, Foreign Rights and Interests in China; Tyau, The Legal Obligations Arising out of Treaty Relations between China and Other States, and "Exterritoriality in China and the Question of its Abolition," British Year Book of International Law, 1921-22, 133; MacMurray, Treaties and Agreements with and concerning China, 18941919; J. C. Bancroft Davis' notes to Treaties and Conventions between the United States and Other Powers, 1776-1887; Borchard, sec. 180, 202; Brown, Foreigners in Turkey; Hall, The Foreign Powers and Jurisdiction of the British Crown; Jenkyns, British Rule and Jurisdiction beyond the Seas; Hinckley, American Consular Jurisdiction in the Orient; Hishida, The International Position of Japan as a Great Power; Dr. Wellington Koo, The Status of Aliens in China; Hyde, I, 448; Moore, Digest, II, 593 seq. The meaning and use of the terms "exterritorial" and "extraterritorial" are discussed in Bonfils (Fauchille), sec. 333, and Piggott, Exterritoriality, 7. The latter is the best single volume on the subject with which it deals.

CHAPTER VIII.

THE ACQUISITION AND TRANSFER OF JURISDICTION.

SECTION 1. THE ACQUISITION OF JURISDICTION BY DISCOVERY AND OCCUPATION.

JOHNSON AND GRAHAM'S LESSEE v. WILLIAM

M'INTOSH.

SUPREME COURT OF THE UNITED STATES. 1823.
8 Wheaton, 543.

Error to the District Court of Illinois.

This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under grant from the United States. It came up upon a case stated, upon which there was a judgment below for the defendant.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognized in the Courts of the United States?

The facts, as stated in the case argued, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of pri

vate individuals to receive, a title which can be sustained in the Courts of this country.

As the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question; as the title to lands, especially, is and must be admitted to depend entirely upon the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.

On the discovery of this immense continent, the nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus