stitution of the United States; for while the Constitution, in Article VI, places treaties above the State laws and declares them to be the "supreme law of the land," adding that "the judges of every State shall be bound thereby," the law of the State of Pennsylvania would in the present case nullify one of the clauses of the treaty of February 26, 1871. In establishing a discrimination between resident and nonresident Italians, a discrimination which the treaty does not contemplate, establish, or, in its general spirit, allow.

For the foregoing reasons, drawn solely from the treaty in force and the principles of public law, and without bringing forth the other reasons of equity, logic, humanity, and practically universal civil consensus which might be advanced, the Italian embassy calls the best attention of the Department of State to a condition of affairs which, in the opinion of the King's Government, constitutes a violation of a treaty in force, and proposes an immediate exchange of views to the end of remedying, if possible, the injury done by the present violation, and, particularly and mainly, with a view to preventing by a modification of or addition to the terms of the treaty, clear and explicit as they are, the possibility of affirming a jurisprudence contrary thereto and of maintaining in the future a continuous and permanent denial of justice to the detriment of the Italians living in the United States.

File No. 18253.

Memorandum to the Italian Embassy.

DEPARTMENT OF STATE, Washington, November 4, 1909. The Department of State has the honor to acknowledge the memorandum regarding the death of Carmine Maiorano, handed by the Italian ambassador to the Assistant Secretary of State on October 26, 1909, and in reply calls attention to the fact that the decision of the Supreme Court of the United States violated neither the express wording nor the spirit of article 3 of the treaty of commerce and navigation of February 26, 1871, nor of article 23 of the same treaty, quoted by His Excellency. Articles 3 and 23 of the treaty are as follows:

ARTICLE 3. The citizens of each of the High Contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.

ARTICLE 23. The citizens of either party shall have free access to the Courts of Justice, in order to maintain and defend their own rights, without any other conditions, restrictions, or taxes than such as are imposed upon the natives; they shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents and factors, as they may judge proper, in all their trials at law, and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the Tribunals in all cases which may concern them; and likewise at the taking of all examinations and evidences which may be exhibited in the said trials.

It will be noted that article 3 grants to the contracting parties "the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the

natives." Article 23 likewise assimilates the Italian subject to native citizens of the United States "without any other conditions, restrictions, or taxes than such as are imposed upon the natives." These passages seem to grant to Italian subjects the same rights as citizens of the United States, while subjecting them, as a necessary condition, to the limitations upon the exercise of rights which citizens of the United States enjoy. The law of Pennsylvania as interpreted by the Supreme Court of Pennsylvania, and as affirmed by the Supreme Court of the United States, draws a distinction between citizens of the United States actually residing within Pennsylvania and citizens of the United States not residing in Pennsylvania, permitting citizens of the United States actually residing within Pennsylvania to bring suits for damages resulting in the death of a relative, but denying to citizens of the United States not residing in Pennsylvania the right of recovery in such a case. As, therefore, citizens of the United States are subjected to residence for the enforcement of certain rights, it does not seem that Italian subjects can claim any greater rights than citizens of the United States, unless greater rights and privileges are expressly granted to them by treaty, and the wording of the treaty shows that Italian subjects are to enjoy no greater rights.

There seems to be no discrimination shown between citizens of the United States and Italian subjects, because the enjoyment of rights specifically granted by the treaty is made to depend upon compliance with the "conditions imposed upon the natives" (art. 3), and the "conditions, restrictions, or taxes, * * * imposed upon the natives." The most that international law requires in the absence of special treaty is equality of treatment.

The requirement of residence as a condition precedent to the enjoyment of rights and privileges is well recognized in American jurisprudence. (Corfield v. Coryele, 1825, Washington's Cir. C. Reps., p. 371.) The department, therefore, fails to note either discrimination or inequality in the recent decision of the Supreme Court of the United States, to which exception is taken by His Excellency the Italian Ambassador.

USE OF THE AMERICAN FLAG FOR ADVERTISING PURPOSES.

File No. 697/48.

No. 10.]

The Acting Secretary of State to Chargé Garrett.

DEPARTMENT OF STATE, Washington, August 18, 1909. SIR: I inclose a copy of a dispatch from the American consul at Catania, reporting the use of the flag of the United States as a sign for saloons and bars in Messina, Catania, and other Italian cities.

You will inquire whether the Italian law controls the display of foreign flags, or whether there are any other means which could be employed to prevent this abuse of our national emblem.

I am, etc.,

ALVEY A. Adee.

No. 37.]

Consul Lupton to the Assistant Secretary of State.

AMERICAN CONSULATE, Catania, Italy, July 19, 1909. SIR: I have the honor to report that I have seen, both in Messina and Catania, as well as in other cities outside this consular district, the American flag used as a sign for saloons and bars, and should be glad if the department would authorize me to use such measures as may be possible to put a stop to this practice. I have tried in one instance to stop it, merely as a citizen of the United States, but without avail, but am certain that it could be done with the help of the Italian authorities.

Rome, November 1, 1909. SIR: With reference to Mr. Adee's instruction No. 10 (file No. 697/48) of August 18 last, in regard to the display of American flags in front of various saloons and bars in Messina, Catania, and other Italian cities, I have the honor to inform you that I immediately addressed a note to the foreign office calling its attention to this matter and asking if the Italian law controlled the display of foreign flags or if there were any other means which could be employed to prevent this abuse of the American national emblem.

I am now in receipt of a note from the foreign office, a copy of which, together with a translation thereof is herewith inclosed, in reply to my note, stating that the Italian law has no control over the hoisting of foreign flags in Italy, but that the several shopkeepers at Messina who have flown American flags in front of their respective places of business have been requested to withdraw them, and this is expected to be the desired remedy.

I have, etc.,

[Inclosure.-Translation.]
Promemoria.

JOHN W. GARRETT.

No. 3.1

MINISTRY FOR FOREIGN AFFAIRS,
Rome, October 28, 1909.

With reference to the memorandum handed by the chargé d'affaires of the United States on the 8th September, the royal ministry for foreign affairs has the honor to inform that no internal provision exists in reference with the use and the exposition of foreign flags by private citizens.

From the investigation made by the competent authorities, it appears that at Messina three shopkeepers have hoisted the American flag outside of their shops, and that at Catania, in a shop situated just opposite the residence of the vice consul of the United States, the American flag, together with the national flag, has been hoisted on the occasion of solemn festivities.

However, in view of the unfavorable impression which the authorities of the United States have received from these facts, the above-mentioned shopkeepers have been invited not to expose in the future the American flag, so that the inconvenience may be considered as having been removed.

JAPAN.

EXTRATERRITORIALITY IN THE LEASED TERRITORY OF KWANGTUNG PROVINCE.

File No. 560/48.

No. 872.]

Ambassador O'Brien to the Secretary of State.

AMERICAN EMBASSY, Tokyo, November 22, 1909. SIR: I have the honor to inclose herewith a copy of a letter from Mr. Williamson, vice consul in charge at Dalny, in which he requests to be informed as to whether the United States enjoys extraterritorial rights in the leased territory of Kwangtung. I inclose for the information of the department and for any comment that it may care to make, a copy of my reply to Mr. Williamson, in which I inform him that the United States no longer exercises such jurisdiction in his district.

I have, etc.,

T. J. O'BRIEN.

[Inclosure.]

No. 1209.]

Ambassador O'Brien to Vice Consul Williamson.

AMERICAN EMBASSY, Tokyo, November 22, 1909.

SIR: I have the honor to acknowledge the receipt of your dispatch No. 1070 of November 16, 1909,' in which you request to be informed as to whether the United States enjoys extraterritorial jurisdiction over its citizens in the leased district of Kwangtung, and, further, you desire to know the circumstances under which it was lost, if it is no longer exercised.

During the years 1897 and 1898 China leased portions of her territory to Russia, England, and Germany.

You will find in the United States Foreign Relations, 1900, pages 382 to 390, that the Department of State, after investigation and correspondence with the legation at Peking, took the attitude in common with all the foreign powers represented at Peking, with the exception of Japan, that the leased territories had passed absolutely out of the control of China during the tenure of the lease.

American consuls in China in whose districts the leased areas had formerly been were therefore informed by the legation, by direction of the Secretary of State, that they should not exercise extraterritorial consular jurisdiction or perform any ordinary nonjudicial consular acts within the leased territory until exequaturs recognizing their official character had been obtained for them from the respective foreign Governments. It was not expected that these exequaturs would recognize the right to extraterritorial jurisdiction.

The Japanese Government, as stated above, refused to admit this principle in the territory leased by Russia. However, when Japan, in 1905, took over from Russia the leased territory it was especially provided by article 10 of the treaty of Portsmouth that Russian subjects in the territory should come under exclusive Japanese jurisdiction.

1 Not printed.

As the exequatur you now hold has been issued to you by the Japanese Government in accordance with the provisions of our treaty with Japan it would seem evident that it gives you no authority to extraterritorial jurisdiction over American citizens, the leased territory being to all intents and practical purposes a part of Japan proper. You will realize that the exequatur issued by the Japanese Government to our consul general in Korea is of a different nature, being issued by the Japanese Government on behalf of the Korean Government, of whose foreign affairs Japan has taken charge.

I am informed by the British and German embassies that they are also of the opinion that foreigners in the Kwantung Peninsula are exclusively under Japanese jurisdiction. I am further informed that this question having lately been brought to the attention of Sir Edward Grey in connection with a proposed trade-mark treaty, the British ambassador was informed that England did not exercise extraterritorial jurisdiction in the leased territory, and that your colleague at Dalny was so advised.

I am, etc.,

T. J. O'BRIEN.

File No. 560/48.

The Secretary of State to Ambassador O'Brien.

DEPARTMENT OF STATE, Washington, December 29, 1909.

SIR: I have to acknowledge the receipt of your No. 872, of the 22d ultimo, inclosing a copy of the correspondence had between the embassy and the consulate at Dalny on the subject of extraterritoriality in the leased territory of Kwangtung Province.

The department has informed the consulate at Dalny that it approves your instruction on the subject.

I am, etc.,

P. C. KNOX.

ADMINISTRATION OF AFFAIRS IN KOREA.

Memorandum.1

IMPERIAL JAPANESE EMBASSY,
Washington.

(Dated the 12th July, 1909, signed by Viscount Sone, resident general in Korea, and Li Kwan Yo, Korean minister president.)

The Governments of Japan and Korea with a view to improve the administration of justice and prison in Korea, thereby assuring protection for persons and property of Korean subjects, as well as the subjects and citizens of foreign powers in Korea, and also to consolidate the basis of the Korean finance, have agreed upon the following stipulations:

ARTICLE 1.

Until the system of justice and prison in Korea shall have been recognized as complete, the Government of Korea delegates to the Government of Japan the administration of justice and prison.

1 Left at the department by the Japanese Ambassador on July 17, 1909.