Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law

By Kal Raustiala | Go to book overview

3
THE IMPERIAL CONSTITUTION

“As near as I can make out the Constitution follows the flag—but
doesn't quite catch up with it.”1

Elihu Root, commenting on the Insular Cases

On May 9, 1880, on an American ship named the Bullion docked in the harbor of Yokohama, Japan, John Ross stabbed his crewmate Robert Kelly to death with a knife.2 As was the common practice at the time for Westerners who committed crimes in Asia, Ross did not face trial for murder before local Japanese authorities, nor did Japanese law influence the outcome of the case in any way. Rather, Ross’s trial was conducted by Thomas van Buren, the local American consul in Kanagawa, Japan.

The trial occurred under consular jurisdiction (described in chapter 1 in this volume), a form of extraterritoriality that was commonly asserted in the past by European great powers in states they deemed “uncivilized.” Japan, though soon to join the ranks of the civilized nations, was at the time of Robert Kelly's death compelled to afford the Western powers a free hand in adjudicating the crimes of their countrymen within Japan. The American consular court in Kanagawa convicted John Ross of murder and sentenced him to death. Although Ross was in fact British, the court held that because he was a seaman on a U.S. vessel he was subject to the jurisdiction of the United States. Ross’s death sentence was ultimately commuted to life imprisonment by President Rutherford B. Hayes. Apparently unsatisfied, in 1890 Ross brought a challenge to his murder conviction that rose to the Supreme Court.

-59-

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Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law
Table of contents

Table of contents

  • Title Page iii
  • Preface v
  • Acknowledgments ix
  • Contents xi
  • 1 - Territoriality in American Law 3
  • 2 - Territory and the Republic 31
  • 3 - The Imperial Constitution 59
  • 4 - The Fall and Rise of Extraterritoriality 93
  • 5 - America Abroad 127
  • 6 - The Long Arm of the Law 157
  • 7 - Offshoring the War on Terror 187
  • 8 - Territoriality's Evolution 223
  • Notes 249
  • Index 301
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