The excerpts here given are taken from Hinckley’s American Consular Jurisdiction in the Orient,” although the arrangement is somewhat different.
In the third decade of the nineteenth century, treaties began to be negotiated between Turkey and the western powers declaring and supplementing the privileges granted by the capitulations. The treaty of the United States under which, as interpreted in the light of custom, our extraterritorial rights in Turkey are still held and exercised, was negotiated in 1830, although the United States had at a much earlier date negotiated in 1830, although the United States had at much earlier date negotiated treaties securing the privileges of extraterritoriality in various minor Mohammedan states, e..g., with Morocco in 187, Tunis 1797, Tripoli 1805, Algiers 1815. Later on, the system of extraterritoriality developed in Turkey was applied by the great powers and the United States in their relations to China, Persia, Japan, and various other Asiatic powers.
That the framers of the Constitution entertained no doubt as to the constitutionality of this jurisdiction would appear from the fact that the two treaties conferring extraterritorial rights upon the United States were concluded almost simultaneously with with the adoption of the Constitution, namely, the treaty with Morocco in January, 1787, and the treaty with France of November 14, 1788, negotiated by Jefferson, which contains a provision that all differences and suits between citizens of the United States in France should be determined by the consuls and vice-consuls, either by reference to arbitrators or by summary judgment without cost.
Proteges.–Formerly, especially in Turkey, the various powers possessing extraterritoriality were accustomed to extend their protection to a lark and a somewhat indefinite number of so-called proteges, who placed themselves under the protection of their consulates by registering therein and submitting to consular jurisdiction. (See legal opinion of Edwin Pears, For. Rel., U.S., 1887, pp. 1109-1113; Hinckley, p. 83) This system naturally excited objection on the part of the native governments and has been in recent times steadily discouraged on the part of all the powers, especially by the United States and Great Britain. ( See the convention limiting the rights of protection in Morocco concluded between all the great powers and Morocco in 1880.) The protege system in Morocco was regulated by a convention signed by several powers at Madrid in 1880. In 1904 Great Britain recognized the predominating influence of France in Morocco. (Hinckley, 20.)
It will be observed that the Department in this passage refused to extend the exception of Revised Statutes in 1993 to descendants of naturalized foreigners who return to the country of their origin, although their country be one in which the United States exercises extraterritoriality.
This attitude receives confirmation from the position of the Department in regard to the child of a native of Morocco naturalized in the United States who had returned to his native country. In this case the Department not only approved the action of the Consul-General Burke in refusing to regard the child as an American citizens, but proceeded to apply to the case of the father the ordinary doctrine of expatriation as applicable to a naturalized citizen returning to the land of this nativity, and refused to make any exceptions on account of the extraterritoriality enjoyed between the United States and Morocco. Article 15 of the treaty between the United States and Morocco should perhaps be noted in this connection, although the Department purposely decided the case without reference to the treaty. Article 15 is as follows: Any subject of Morocco who has been naturalized in a foreign country, and who shall return to Morocco, shall after having remained for a length of time equal to that which shall have been regularly necessary for him to obtain such naturalization choose between the entire submission of the laws of the Empire and the obligation to quit Morocco, unless it shall be proved that his naturalization in a foreign country was obtained with the consent of the Government of Morocco. Foreign naturalization heretofore acquired by subjects of Morocco according to the rules established by the laws of each country shall be continued to them as regards all its effects, without any restriction.
SEC. 4127. The provisions of this Title, so far as the same are in conformity with the stipulations in the existing treaties between the United States and Tripoli, Tunis, Morocco, and Muscat, respectively, shall extend to those countries, and shall be executed in conformity with the provisions of the treaties and of the provisions of this Title, by the consuls appointed by the United States to reside therein, who are hereby ex officio invested with the powers herein delegated to the ministers and consuls of the United States appointed to reside in the countries named in section forty hundred and eighty-three, so far as the same can be exercised under the provisions of treaties between the United States and the several countries mentioned in this section, and in accordance with the usages of the countries in their intercourse with the Franks or other foreign Christian nations.
There are, strictly speaking, no Moroccan laws relating to citizenship of Moorish subjects in Morocco. The fundamental laws of this non-Christian country are based entirely upon the Islamic code, no part of which treats of the subject of citizenship.
There are, however, numerous treaties and conventions between the various Christian countries and the Moorish Empire, by means of which citizenship in this country [USA] is defined; but, as I understand, from the above acknowledge instructions, that it is not the desire of the Department to call for a report upon such lines, I will, therefore, confine these remarks to general conditions existing, which may possibly be of some use in connection with the information desired.
(1) Citizenship in Morocco may be said to be governed by the laws pertaining to the same in other countries, with the exception that all persons residing in Morocco who cannot prove foreign citizenship or protection are considered ispo jure as Moorish subjects.
(2 and 3) Moorish subjects lost their nationality only by becoming naturalized in or protected by, another country having treaty regulations with the Moorish Empire.
It was established by the Convention of Madrid, concluded July 3, 1880, as follows:
Any subject of Morocco who has been naturalized in a foreign country, and who shall return to Morocco, shall after having remained for a length of time equal to that which shall have been regular y necessary for him to obtain such naturalization, choose between entire submission to the laws of the Empire and the obligation to quit Morocco, unless it shall be proved that his naturalization in a foreign country was obtained with the consent of the Government of Morocco. Foreign naturalization heretofore acquired by the subjects of Morocco according to the rules established by the laws of each country, shall be continued to them as regards all its effects without any restriction.
The above ruling has never yet been acted upon, and should this at any time be contemplated seriously, a large number of naturalized people, American and others residing in Morocco, would be affected thereby. (4 and 5)
Residence in foreign parts does not affect the nationality of Moorish subjects, and the Moorish Government has no means of protecting its subjects permanently residing in other countries, with the exception of a so-called Moorish consul at Gibraltar and a Moorish agent at Cairo, Egypt.”
“Be it further enacted by the authority aforesaid, that no person being an African or Negroe, other than a subject of the Emperor of Morocco, or a citizen of some one of the United States; to be evidenced by a certificate from the Secretary of the State of which he shall be a citizen, shall tarry within the Commonwealth.” Source: Georgia Statutes referencing the 1787 Act of Mass and rights of Free Negroes March 26, 1788
Anciently, in Rome, the manumission of a slave produced no change of state in him, “because he had no state or civil capacity.” Servus autem manumissus capite non minuitur; quia nullum caput habuit. (Justinian Lib. 1, Tit. 16, p. 43.) And such in a word, we apprehend to be the exact result of African manumission here; and for the very brief, but satisfactory reason assigned in this single sentence. It produces no change in the state of the negro slave here, because he has no state or civil capacity. This we believe to be the whole law of this case: and upon this simple principle, it may be safely rested. How can the mere act of manumission, by the master, invest the slave, who previously held no standing in the State, with any of the attributes of a freeman? . . .Bryan v. Walton, 14 Georgia 185 (1853).
Such is the result, and no more, of manumission here. The slave is dismissed from the dominion of his master: and clothed with the privilege of going where he pleases. But to become a citizen of the body politic, capable of contracting, of marrying, of voting, requires something more than the mere act of enfranchisement. To adopt into the body politic a new member, is a vastly important measure in every community.–It is an act of sovereignty, just as much as naturalizing a foreign subject. The highest act of sovereignty a government can perform, is to adopt a new member, with all the privileges and duties of citizenship. Was there a general law, elevating all free persons of color to this condition, then the assent of the government would be given in advance of the Act of Manumission. No such act is claimed–none such exists. The black man in this State, may have the power of volition. He may go and come, without a domestic master to control his movements; but to be civilly and politically free, to be the peer and equal of the white man–to enjoy the offices, trusts and privileges our institutions confer on the white man, is not now, never has been, and never will be, the condition of this degraded race. Bryan v. Walton, 14 Georgia 185 (1853).
“Our ancestors settled this State when a province, as a community of white men, professing the christian religion, and possessing an equality of rights and privileges. The blacks were introduced into it, as a race of Pagan slaves. The prejudice, if it can be called so, of caste, is unconquerable. It was so at the beginning. It has come down to our day. The suspicion of taint even, sinks the subject of it below the common level. It is to be credited, that parity of rank would be allowed to such a race? Let the question be answered by our Naturalization Laws, which do not apply to the African. He is not and cannot become a citizen under our Constitution and Laws. He resides among us, and citizens yet, is a stranger. A even, and yet not a citizen. Though not a slave, yet is he not free. Protected by the law, yet enjoying none of the native immunities of freedom. Though not in a condition of chattelhood, yet constantly exposed to it.” Bryan v. Walton, 14 Georgia 185 (1853).
“The Fourteenth and Fifteenth Amendments operate solely on state action, and not on individual action. Unless the Thirteenth Amendment vests jurisdiction in the national government, the remedy for wrongs committed by individuals on persons of African descent is through state action and state tribunals, subject to supervision of this Court by writ of error in proper cases. Notwithstanding the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments, the national government still remains one of enumerated powers, and the Tenth Amendment is not shorn of its vitality. Slavery and involuntary servitude as denounced by the Thirteenth Amendment mean a condition of enforced compulsory service of one to another, and while the cause inciting that amendment was the emancipation of the colored race, it reaches every race and every individual. The result of the Amendments to the Constitution adopted after the Civil War was to abolish slavery, and to make the emancipated slaves citizens, Page 203 U. S. 2 and not wards of the nation, over whom Congress retained jurisdiction. This decision of the people is binding upon the courts, and they cannot attempt to determine whether it was the wiser course.” Source: Hodges v. United States, 203 U.S. 1 (1906)
“One thing more: at the close of the Civil War, when the problem of the emancipated slaves was before the nation, it might have left them in a condition of alienage, or established them as wards of the government, like the Indian tribes, and thus retained for the nation jurisdiction over them, or it might, as it did, give them citizenship. It chose the latter and….by the Thirteenth, it forbade slavery or involuntary servitude anywhere within the limits of the land. Whether this was or was not the wiser way to deal with the great problem is not a matter for the courts to consider Page 203 U. S. 20. It is for us to accept the decision, which declined to constitute them wards of the nation or leave them in a condition of alienage where they would be subject to the jurisdiction of Congress, but gave them citizenship, doubtless believing that thereby, in the long run, their best interests would be subserved, they taking their chances with other citizens in the states where they should make their homes. See Hodges v. United States 203″ Source: Reports of Cases Argued and Decided in the Supreme Court of the …, Book 51 By United States. Supreme Court, Walter Malins Rose