Innocents Abroad: Law In and Out of Context

Abstract

In 1891 the United States Supreme Court decided the case of Ross v. McIntyre and held that “The constitution can have no operation in another country”. Although it is no longer good law, this precedent is still the starting point for any discussion of the extraterritorial application of the constitution, to citizens and to non-citizens. The Ross decision grew out of a trial held in an American consular court in Japan, where Ross was convicted of murder. A similar trial was held at almost exactly the same time in an American consular court in Egypt, and there too the accused was convicted of murder. Despite the similarities between these cases, the two men – and the two cases – had very different fates. A study of the trial and pardon records of these men together with diplomatic correspondence, governmental documents, legislative debates and contemporaneous newspaper reports, reveals in detail the inner workings of extraterritorial judicial jurisdiction, the confusion surrounding it, and the extent to which individual defendants and decisions in individual cases fell victim to domestic and international politics. The archival records provide a concrete historical context for the cases, breathe life into an important constitutional precedent, and answer many of the puzzling questions raised by the Ross decision.