In the treaty between France and Algiers (1764), it was agreed that offences occurring at sea, should be tried by the French consul, when the offender was a Frenchman; and by the dey, when the offender was an Algerine. And, at the same time, in her treaty with Morocco, France merely secured the stipulation that 'if a Frenchman should strike a subject of Morocco, he shall be tried only in presence of his consul, who shall defend his cause, and he shall be judged impartially.' A French edict of 1778, in reference to the duties of consuls, alludes to trials occurring in Constantinople, which clearly admit interterritorial jurisdiction. The Republic, in 1801, also admitted that right on the part of Moslem states.
Algiers, in her treaty with Denmark (1792), expressly provides for jurisdiction over the Danes in her dominion.
Russia negotiated a treaty, in 1783, with the Porte, stipulating only for the privilege of exercising jurisdiction through her ministers or consuls, in cases of quarrels between Russians.
Spain was content, in 1784, to secure from Tripoli the presence in a Tripolitan court of a Spanish consul on the trial of a Spaniard.
Our own country uniformly conceded to Barbary powers entire jurisdiction over our resident citizens. The treaty with Morocco (1787) reads: 'When a citizen of the United States kills or wounds a subject of Morocco, or if a subject of Morocco kills or wounds a citizen of the United States, the laws of the country are to be followed; equal justice, and the presence of the consul, being alone stipulated for.' And in the treaty with Algiers (1816), we merely require that the 'sentence of punishment of an American citizen shall not be greater, or more severe, than it would be against a Turk in the same predicament.'
With Tunis there was the same understanding. Again, in the treaty of 1836, with Morocco, no claim is made for jurisdiction by us over our citizens; the presence of the consul at a trial being deemed a sufficient guarantee for an equitable trial; showing, that up to that date Morocco resisted the extraterritorial aggression to which the Ottoman power had already yielded.
So far as appears from Marten's Recueil des Traités, the Sublime Porte was the first to yield the point, suffering it to go by default, however, of exempting resident foreigners from local jurisdiction, rather than by a formal abdication of authority in a treaty. The earliest admission that we have met with, strange to say, occurs in the United States' treaty, negotiated with Turkey in 1830. 'If litigation and disputes should arise between subjects of the Sublime Porte and citizens of the United States, the parties shall not be heard, nor shall judgment be pronounced, unless the American dragoman be present. Citizens of the United States, committing an offence, shall not be arrested and put to prison by the local authorities, but they shall be tried by their minister or consul, and punished according to their offence, following in this respect the usage observed toward other Franks.'
With Persia, in 1856, we stipulated only that the American consul shall be present at the tribunal, when Americans are parties in a trial.
Our earliest treaty in Eastern Asia was negotiated in 1833, with Siam, with which power we agreed, 'that merchants of the United States, trading in the kingdom of Siam, shall respect and follow the laws and customs of the country in all points'—conceding not only interterritoriality to the fullest extent; but making it the duty of American traders to creep on all fours when in the presence of a high functionary of that kingdom, and to become orthodox Buddhists! Inadvertently, no doubt, going farther than Joel Barlow, who thought it expedient in his treaty with Tripoli (1797) to insert a sort of disclaimer against Christianity, inserting in the treaty, 'the Government of the United States is not in any sense founded on the Christian religion,' a sort of offset, in accordance with the fashion of the period, to the Austrian treaty of nearly the same date, which was negotiated in the name of the 'Most Holy Trinity.'
As regards Mohammedan countries, it is not likely that grave evils will soon arise from the exempting of foreigners from local jurisdiction; there is yet so much vigor in the government of those states, and so much vindictiveness toward the giaour foreigners there will be deterred from those practices which render them a terror to the more servile people of Buddhist countries. But the extension of the principle to Eastern Asia has been extremely disastrous to the peoples of those countries, and has not been unattended by inimical reflex influences on the wrong doers of the West.