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Extraterritorial Jurisdiction in the Ancient World*

Published online by Cambridge University Press:  12 April 2017

Shalom Kassan
Shalom Kassan*
Affiliation:
Diploma, Government of Palestine Law School, Jerusalem, 1928; Assistant Registrar of Lands, Government of Palestine, Jerusalem and Jaffa Districts, 1920–1928; Ph.B., 1929, M.A., 1931, the University of Chicago
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Extract

It is now an established principle of modern international law, that there exists in every independent State but one body of law. This body of law is administered by all the courts alike over all persons and things within its territorial limits. These courts, within the limits of their respective jurisdictions, do not discriminate between the various inhabitants of the State. The origin, nationality or religion of the people who appear before the courts is not questioned, and is not of any importance.

Type
Research Article
Information
American Journal of International Law , Volume 29 , Issue 2 , April 1935 , pp. 237 - 247
Copyright
Copyright © American Society of International Law 1935

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Footnotes

*

The writer is much indebted to Professor Quincy Wright, of the University of Chicago, and to his dear friend Dr. Alexander M. Dushkin, for their kindness in reading this manuscript and for their valuable suggestions.

References

1 Henry Wheaton, Elements of International Law (6th ed. 1885), p. 200; Sir Robert Phillimore, Commentaries upon International Law (2nd ed. 1871), Vol. 1, p. 376; W. E. Hall, A Treatise on International Law (5th ed. 1904), p. 50 ff, 166 ff; L. Oppenheim, International Law (1905), Vol. 1, sec. 317 ff; J. B. Moore, A Digest of International Law (1906), Vol. 2, p. 4; and T. J. Lawrence, The Principles of International Law (6th ed. 1915), p. 212.

2 The second quarter of this century, however, witnesses a regress in this principle. Thus, in Germany today, the origin and religion of the people are questioned and play an important rôIe in the procedure and in the decision of the court. It might be of interest to mention here that deportation of aliens from the United States is entrusted to the executive officers without any judicial proceedings or intervention, and no appeal to the courts is accepted (12 Wall. 457; 130 U. S. 581; 142 U. S. 651; 149 U. S. 698, 711; 150 U. S. 476). The same policy practically is also adopted in other countries (Ernst Freund, The Police Power, Public Policy and Constitutional Rights, Chicago, 1904, p. 726 ff; Edwin Borchard, The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 48 ff).

3 The Schooner Exchange v. M'Faddon, 7 Cranch, 116, 143.

4 F. Wharton, A Digest of the International Law of the U. S. (2nd ed. 1887), Vol. 2, p. 432, section 198.

5 While the French courts freely exercise jurisdiction over suits between Frenchmen and foreigners, it is rather vague and uncertain, however, whether French courts enjoy the jurisdiction in suits between foreigners (Phillimore, op. cit., Vol. 4, p. 726; “Jurisdiction in Actions Between Foreigners,” by Professor Pillet, in 18 Harvard Law Review, 325). This is not the case in England or in the United States. Even though both parties are subjects of a foreign state, the local courts entertain exclusive jurisdiction (Dicey, Conflict of Laws (5th ed. 1932), p. 219 ff).

6 Seamen, however, serving on American vessels, regardless of their nationality, are subject to the jurisdiction of the United States and are tried by an American consular court (140 U. S. 453). Non-British seamen, on the other hand, serving on British vessels, are not subject to British law. They are turned over to the consul of the country of which they are nationals (Hall, op. cit., p. 140 ff; Borchard, op. cit., p. 471 ff),

7 However, questions of “personal status,” as well as the succession to movables, are governed on the continent of Europe, including France, and also throughout the Orient, by the law of the person's nationality. In this country, as well as in England, the law with regard to personal status is regulated on the same territorial doctrine as any other civil or criminal matter.

8 Two exceptions have to be admitted. Laws creating public privileges—such as the right to vote in city, state or other government elections, or to be elected a member of a governing body, or to be appointed to government positions, also laws imposing public duties, such as military service—apply to the citizens of the State only. Again, foreign sovereigns and ambassadors are exempted from the local jurisdiction (Moore, op. cit., pp. 558, 774; John Westlake, A treatise on Private International Law (1905), p. 246 ff).

9 For a thorough study on this particular matter, see “The Jurisdiction of Courts over Foreigners,” by Professor Beale in 26 Harvard Law Review, 193 and 283.

10 Wharton, op. cit., Vol. 1, p. 1. Marshall, C. J., used the same terms in The Exchange (supra, p. 135), and in an earlier case, Church v. Hubbart (1804), 2 Cranch, 187, 234.

11 It was the constant struggle of these and other States during the latter part of the last century—and in some cases up to the present day—to be emancipated from the restraints on their absolute authority within their territory. Japan, indeed, had shown in 1894 that her strength and her civilization could achieve a Western level. The Great Powers of Europe and the United States were fully convinced that the native courts in Japan could afford sufficient security for the lives and property of their subjects resident in her territory. They, therefore, abolished the extraterritorial privileges which they previously enjoyed. Great Britain led the way; the others followed. By the end of the century, Japan's emancipation was fully accomplished, and Japanese law has since been applied to natives as well as to foreign citizens. Turkey, China, Persia, Albania and others were anxious to follow the footsteps of Japan. Turkey, Persia and Albania finally acquired absolute authority over their territories and over all the inhabitants within their territories about a quarter of acentury later. (Moore, op. cit., Vol. 2, p. 593; John Westlake, International Law, 1910, Pt. 1, pp. 40, 206; Wharton, op. cit, Vol. 2, p. 485, sec. 198; Phillimore, op. cit., Vol. 1, p. 392.) The United States exercised extraterritorial jurisdiction in Bulgaria up to the end of the World War (Borchard, op. cit., p. 433). China and Egypt are still fighting for unlimited authority over all the people in their States, but as yet have not succeeded. In other Eastern and African territories, such as Madagascar, Algiers, Morocco, Syria, Palestine, etc., the extraterritorial régime was relinquished as soon as those territories were placed under the jurisdiction of a Western Power. Special provisons, however, were maintained for the safeguarding of foreign citizens.

12 Borchard, op. cit., p. 430 ff. For an excellent presentation of the equality of States as it appears in the theory of international law, see “The Equality of States in International Law,” by Professor Edwin D. Dickinson (Harvard University Press, 1920).

13 Moore, op. cit., Vol. 2, p. 761; Westlake, International Law (1910), Pt. 1, p. 88; David Jayne Hill, A History of Diplomacy in the International Development of Europe (1924), Vol. 2, p. 48.

14 Sir Henry S. Maine, Ancient Law (1906), p. 106 ff.

15 Sir James G. Frazer, Folk-Lore in the Old Testament (1918), Vol. 1, p. 418. Whatever may be the proximate causes, whatever may be the precise degree of his fear and hatred, still the fact remains that even to this day the savage fears and hates the stranger. He looks upon him as an enemy, and it may be as a being brutish, monstrous or devilish. P. J. Hamilton Grierson, The Silent Trade, 1903, p. 30 ff; G. Taplin in J. D. Wood's, The Native Tribes of South Australia, p. 1 ff; R. F. Burton, The Captivity of Hans Stade of Hesse in A.D. 1547-1555 among the Wild Tribes of East Brazil; C. M. Doughty, Travels in Arabia Deserta (1921), Vol. 1, pp. 276, 170, 580; W. R. Smith, Lectures on the Religion of the Semites (1894), p. 121 ff.

16 Herodotus, 2:41; Genesis, 43:32; A. H. Sayce, The Early History of the Hebrews (1897), p. 174.

17 S. R. Driver, The book of Exodus (1911), p. xlvi.

18 A. H. Sayce, The Higher Criticism (5th ed. 1895), pp. 222, 248; Early Israel and the Surrounding Nations (1899), p. 44 ff; Early History of the Hebrews, p. 212.

19 David G. Hogarth, Authority and Archaeology (1899), pp. 59, 68.

20 Herodotus, 2:112; James Henry Breasted, A History of Egypt (1924), p. 448.

21 Sir Travers Twiss, Law of Nations (2nd ed. 1884), Vol. I, p. 444.

22 Breasted, op. tit., p. 577 ff.

23 A. H. Sayce, The Ancient Empires of the East (1886), p. 53 ff.

24 Sayce, op. tit., pp. 55, 180; G. Maspero, The Passing of the Empires (850 B.C.-330 B.C.), 1900, p. 647 ff.

25 Breasted, op. tit., p. 590.

26 Herodotus, 2:154, 178; H. R. Hall, The Ancient History of the Near East (7th ed. 1927), p. 528 ff.

27 Coleman Phillipson, The International Law and Customs of Ancient Greece and Rome (1911), Vol. I, p. 193.

28 S. A. Cook, The Laws of Moses and the Code of Hammurabi (1903), p. 276.

29 M. Jastrow, The Religion of Babylonia and Assyria, p. 664.

30 A. H. Sayce, The Early History of the Hebrews (1897), pp. 57-58.

31 A. H. Sayce, Babylonians and Assyrians (1899), p. 186 ff. Professors Olmstead (History of Assyria, 1923) and Jastrow (The Civilization of Babylonia and Assyria, 1915) are silent on the subject of the foreigner's status in that part of the ancient world.

32 Of some of the more recent works the reader is referred to Das Jitdentum und seine Umwelt, Berlin, 1927, by Michael Guttman. “A vivid background for the study of Hebrew Law,” in general, is supplied by my former teacher, the late Professor J. M. P. Smith, in his Origin and History of Hebrew Law, University of Chicago Press, 1931. Alfred Bertholet's“Die Stellung der Israeliten und der Juden zu den Fremden,” Freiburg, I. B., 1896, ought not to be ignored.

33 The social position of the Hebrew Ger (Toshab) is similar to the corresponding Arabic Jar. Semitic communities were composed, in addition, of free tribesmen of pure blood, also of a class of people who were personally free, but had no political rights. They were protected strangers. See Smith, Religion of the Semites, p. 75 ff, and also his Kinship and Marriage in Early Arabia, p. 40 ff.

34 Compare Second Kings, 17:24-41.

35 Ex. 12: 50; Lev. 24: 22; Nu. 9:14, 15:15, 16, 29.

36 Phillipson, op. dt., Vol. I, p. 30 ff.

37 R. J. Bonner, Administration of Justice in the age of Homer, Classical Philology, Vol. VI, p. 12 ff. Though Homer often says that strangers and the poor came from Zeus, and that suppliants were under his special protection (The Odyssey, 6:207 ff; 14:508; 7:165; 7:181; 9: 270). Thus Zeus is often called Xenios, the Protector.

38 H. G. Robertson, The Administration of Justice in the Athenian Empire (1924), p. 9.

39 Bonner and Smith, The Administration of Justice from Homer to Aristotle (1930), p. 310 ff.

40 Phillipson, op. cit., Vol. I, p. 147 ff.

41 Gilbert, Greek Constitutional Antiquities (1895), I, p. 174.

42 Herodotus, 6:42; Hitzieg, AUgriechische Staatsvertrage vber BechtshUfe, p. 28 ff; Phillipson, op. at., Vol. I, p. 192 ff.

43 Theodor Mommsen, History of Rome (1895), p. 199 ff.

44 Phillipson, op. cit., p. 213 ff

45 Maine, op. cit., p. 51 ff.

46 F. C. von Savigny, Private International Law, Vol. 1, p. 116 ff.