CHAPTER XI

JURISDICTION

45. +Jurisdiction in General.+

46. +Territorial Domain and Jurisdiction.+

47. +Method of Acquisition.+ (_a_) Discovery. (_b_) Occupation. (_c_) Conquest. (_d_) Cession. (1) Transfer by gift. (2) Transfer by exchange. (3) Transfer by sale. (4) Cession of jurisdiction. (_e_) Prescription. (_f_) Accretion.

48. +Qualified Jurisdiction.+ (_a_) Protectorates. (_b_) Sphere of influence.

49. +Maritime and Fluvial Jurisdiction.+

50. +Rivers.+ (_a_) Which traverse only one state. (_b_) Flowing through two or more states. (_c_) Under jurisdiction of two states.

51. +The Navigation of Rivers.+

52. +Enclosed Waters.+ (_a_) Wholly enclosed. (_b_) Gulfs, bays, estuaries. (_c_) Straits: Danish Sounds, Dardanelles. (_d_) Canals: Suez, Panama, Nicaraguan, Corinth, Kiel.

53. +The Three-mile Limit.+

54. +Fisheries.+ (_a_) Deep sea. (_b_) Canadian. (_c_) Bering Sea.

55. +Vessels.+ (_a_) Classes. (1) Public. (2) Private. (_b_) Nationality. (_c_) Jurisdiction. (1) Public. (2) Private. (3) Semi-public.

56. +Personal, General--Nationality.+

57. +Natural-born Subjects.+

58. +Foreign-born Subjects.+

59. +Acquired Nationality.+ (_a_) By marriage. (_b_) By naturalization. (_c_) By annexation of territory. (_d_) Effect of naturalization. (_e_) Incomplete naturalization.

60. +Jurisdiction over Aliens.+ (_a_) Over subjects abroad. (1) Emigration laws. (2) Recall of citizens. (3) Penal jurisdiction. (4) Protection of subjects. (_b_) Over aliens within territory. (1) Exclusion. (2) Expulsion. (3) Conditional admission. (4) Settlement. (5) Taxes. (6) Sanitary and police jurisdiction. (7) Penal jurisdiction. (8) Maintenance of public order. (9) Military service. (10) Freedom of commerce. (11) Holding property. (12) Freedom of speech and worship. (_c_) Passports.

61. +Exemptions from Jurisdiction--General.+

62. +Sovereigns.+

63. +State Officers.+ (_a_) Diplomatic agents. (_b_) Consuls. (_c_) Army. (_d_) Navy.

64. +Special Exemptions.+ (_a_) In Oriental countries. (1) Penal matters. (2) Civil matters. (_b_) In Egypt.

65. +Extradition.+ (_a_) Persons liable. (_b_) Limitations. (_c_) Conditions. (_d_) Procedure.

66. +Servitudes.+ (_a_) International. (_b_) General.

§ 45. Jurisdiction in General

Jurisdiction is the right to exercise state authority, and for the purposes of international law may be classified as, (_a_) territorial or land jurisdiction, (_b_) fluvial and maritime, and (_c_) jurisdiction over persons.

§ 46. Territorial Domain and Jurisdiction

The word "territory" is sometimes used as equivalent to domain or dominion or to an expression covering the sphere of state control. Territory is also used in the stricter sense of the land area over which a state exercises its powers. In this stricter sense, territorial jurisdiction refers to the exercise of state authority over the land within its boundaries and those things which appertain to the land. The growing international importance of railroads, telegraph, and other modern means of communication has introduced new topics not considered in early treatises, and these are still under discussion.

The fundamental law of territorial jurisdiction is that a state has within its boundaries absolute and exclusive jurisdiction over all the land and those things which appertain thereto. Certain exemptions are specially provided in international law to which all states are considered as giving express or tacit consent. In other respects than those mentioned under exemptions, the state may, as sovereign, exercise its authority at discretion within the sphere it has set for itself. The state has, as against all other states, an exclusive title to all property within its territorial jurisdiction. As regards its own subjects, it has the paramount title which is recognized in the right of eminent domain, or the right to appropriate private property when necessary for public use. A state may also in its corporate capacity hold absolute ownership in property, as in its forts, arsenals, ships, etc.

The state also has the right to enforce a lien on the land and what appertains to it in the form of taxes.

§ 47. Method of Acquisition

The method of acquisition of territorial jurisdiction is a subject which has received much attention in international law, particularly because of the remarkable expansion of the territorial area of states within the modern period of international law since 1648.

The methods commonly considered are: (1) discovery, (2) occupation, (3) conquest, (4) cession, (5) prescription, (6) accretion.

(_a_) In the early period of European expansion through =discovery=, the doctrine that title to land hitherto unknown vested in the state whose subject discovered the land was current. Gross abuse of this doctrine led to the modification that discovery without occupation did not constitute a valid title. As the field of discovery has grown less, the importance of a definition of occupation has decreased.

(_b_) =Occupation= is held to begin at the time of effective application of state authority, and strictly continues only during the exercise of such authority. In fact, however, the title by occupation is held to extend to the adjacent unoccupied territory to which the state might potentially extend the exercise of its authority, or where it may from time to time exercise its authority in an undisputed manner. Title by occupation extends as a rule to that area, not under the jurisdiction of another state, which is necessary for the safety of the occupied area or is naturally dependent upon it, as to the territory drained by a river of which a given state holds the mouth.

The "Hinterland Doctrine," brought forth during the latter years of the nineteenth century, advances the idea that no such limits as above shall bound the area which can be claimed on ground of occupation, but that coast settlements give a _prima facie_ title to the unexplored interior.

While the uncivilized peoples living within an area to which a civilized state claimed jurisdiction by virtue of occupancy were often unjustly treated, they however "were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil of their own will, except to the government claiming the right of preëmption.... The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil, and exercise such a degree of sovereignty as circumstances required, has never been questioned."[126]

(_c_) =Conquest= in the technical sense of the status of a territory which has come permanently under the jurisdiction of the enemy is distinct from military occupation, which is a simple fact supported by force.

Military occupation may pass into conquest (1) by actual occupation for a long period, with intention on the part of the occupier to continue the possession for an indefinite period, provided there has not been a continued and material effort upon the part of the former holder to regain possession. If, after a reasonable time, this effort to regain possession seems futile, the conquest may be regarded as complete. Each state must judge for itself as to the reasonableness of the time and futility of the effort. (2) Conquest may be said to be complete when by decree, to which the inhabitants acquiesce, a subjugated territory is incorporated under a new state. (3) A treaty of peace or act of cession may confirm the title by conquest.[127]

(_d_) Transfer of territory by =cession= may be by gift, exchange, or sale.

(1) The _transfer by gift_ is simple, and carries such obligations as the parties interested may undertake. In 1850, by a treaty with Great Britain, "Horse-shoe Reef," in Lake Erie, was ceded to the United States for the purpose of the erection of a lighthouse, "provided the Government of the United States will engage to erect such lighthouse, and to maintain a light therein; and provided no fortification be erected on said Reef."[128]

(2) _Transfer of territory by exchange_ is not common in modern times. By the Treaty of Berlin, 1878, a portion of Bessarabia, given to Roumania by the Treaty of Paris, 1856, was given back to Russia, and Roumania received in exchange a portion of Turkey.[129]

(3) _Transfer of territory by sale_ has been frequent. From 1311, when the Markgraf of Brandenburg sold three villages to the Teutonic knights, down to the nineteenth century, instances of sale might be found, but the nineteenth century has numerous instances which have established the principles. Napoleon sold Louisiana to the United States in 1803, the Prince of Monaco made a sale to France in 1851, Russia sold Alaska to the United States in 1867, the Netherlands sold African colonies to Great Britain in 1872, Sweden sold the island of St. Bartholomy to France in 1877, the United States bought the Philippines in 1898. The fact of the sale is not a matter of international law, but is purely within the range of the public law of the countries concerned. The change of jurisdiction of the area gives rise to certain possible complications which may involve principles of international law, though generally the conditions of sale settle such questions.

(4) _Cession of jurisdiction_ over a given portion of territory as surety for the performance of a certain act, payment of an indemnity or the like, has for some years been a method of acquiring temporary jurisdiction which frequently becomes permanent.

(_e_) =Prescription=, or the acquisition of territory by virtue of long-continued possession, is similar to prescription in public law as applied to the acquisition of property by persons. The recognition of this principle prevents many disputes over jurisdiction of territory which originally may have been acquired in a manner open to question, _e.g._ the holding of the territory by the states parties to the partition of Poland may through long-continued possession be valid by prescription if not by the original act.

In regard to prescription, it should be observed that (1) it is a title valid only against other states. The inhabitants do not necessarily lose rights originally possessed. (2) This method avoids perpetual conflicts on ground of defect of original title. (3) Prescription may be considered as effective when other states have for a considerable time made no objection, threatening the exercise of jurisdiction by the state in possession. While some authors deny this right, it is generally admitted in fact, and by most of the leading authorities acknowledged in theory.[130]

(_f_) When land areas in the neighborhood of the boundary of a state are changed, territory may be acquired by =accretion=. (1) Land formed by _alluvium_ or other cause near the coast of a state is held to belong to that state. Lord Stowell, in 1805, held that mud islands formed by _alluvium_ from the Mississippi River should for international law purposes be held as part of the United States territory.[131] In general, _alluvium_ becomes the property of the state to which it attaches, following the Roman law.[132] (2) Where a river is the boundary, the rule is well-established that islands formed on either side of the deepest channel belong to the state upon that side of the channel; an island formed mid-stream is divided by the old channel line. (3) When a river's channel is suddenly changed so as to be entirely within the territory of either state, the boundary line remains as before in the old channel. So also the boundary line of territory is not changed, even if the bed of a lake be changed.

§ 48. Qualified Jurisdiction

Two degrees of qualified territorial jurisdiction are exercised in the protectorate and the sphere of influence.

(_a_) =Protectorates.= The protecting state usually acquires the jurisdiction over all external affairs of the protected community, often including territorial waters, and assumes the direction of its international relations. A measure of jurisdiction of those internal affairs which may lead to international complications is also generally assumed by the protecting state, _e.g._ treatment of foreigners in the protected territory, relations of protected subjects in foreign countries, use of flag, etc. The conditions of protected states vary greatly, hardly the same description holding for any two. It may be safe to say that (1) the protecting state cannot be held responsible for the establishment of any particular form of government, (2) a reasonable degree of security and justice must be maintained. As to what constitutes a "reasonable degree," the circumstances of each case must determine; then the protecting state is bound to afford such justice and security and (3) must be able to exercise within the protected area such powers as are necessary to meet its responsibilities.

(_b_) The term "=sphere of influence=" has been used since the Berlin Conference, 1884-1885, to indicate a sort of attenuated protectorate in which the aim is to secure the rights without the obligations. First applied to Africa in the partition of the unexplored interior among the European powers,--Great Britain, Germany, France, Italy, Portugal,--it has since been extended to other regions. This doctrine of mutual exclusion of each from the "spheres" of all the others cannot be held to bind any states not party to the agreement.

The method of exercise of "influence," while varying, usually consists in making with the native chiefs treaties which convey privileges other than the cession of sovereignty. These privileges are often commercial, and may be with the state direct or agreements with some company to whom the state has delegated a portion of its authority, as in the African trade companies.

The "spheres of influence," gradually with the growth of power of the influencing state and the necessity of protecting the "sphere," against other states, become less vague in their relations to the influencing state and merge into protectorates or some other more stable condition.

This "sphere of influence" idea, as well as the "Hinterland Doctrine," can be of only temporary importance, owing to the limited area still open to occupation. It is maintained that within the "sphere" the influencing state has jurisdiction to the exclusion of another state, and that it has a right to occupy the territory later, if advisable. The influencing state disclaims all obligations possible.[133]

§ 49. Maritime and Fluvial Jurisdiction

Wheaton states as a general principle of maritime and fluvial jurisdiction, "Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss or inconvenience to the proprietor."[134] While the tendency of international policy is toward unrestricted freedom of river navigation, yet the principle as enunciated by Wheaton cannot be said to be established in practice. The American and Continental writers have generally favored the principle enunciated by Wheaton. English writers have contended against this position as a right, but admit that the principle is becoming established by numerous treaties and conventions. As to the sea, the principle may be said to be established.

§ 50. Rivers

The jurisdiction of rivers is a question which is not identical with the right of navigation of rivers, and may best be considered apart. The question of jurisdiction is one of general international principle, while the question of river navigation is one of particular provision, in many instances.

The rivers fall under three classes:--

1. Rivers which traverse only one state.

2. Rivers which traverse two or more states.

3. Rivers upon the opposite banks of which different states have jurisdiction.

(_a_) =Rivers which traverse only one state= are exclusively within the jurisdiction of that state. This jurisdiction may extend even to the forbidding of the use of a river to other states, and justifies the state in prescribing such regulations for its use as it may deem fit.

(_b_) =Rivers flowing through two or more states= are for those parts within the boundaries of each state under its jurisdiction for the purposes of police, tolls, and general regulations. The right of absolute exclusion of the co-riparian states by any one of the states through which a river flows has been the subject of much discussion, and authorities of great weight can be found upon either side.

(_c_) =When two states have jurisdiction= upon opposite banks of a river, the jurisdiction of each state extends to the middle of the main channel or _thalweg_. Before the Treaty of Luneville (Art. VI.), 1801, it had been common to consider the limit of jurisdiction of the two states the middle of the river, a line much more difficult to determine, and more changeable than the channel line. The _thalweg_ has been frequently confirmed as the accepted boundary where no conventions to the contrary existed.[135]

§ 51. The Navigation of Rivers

The laws of jurisdiction of rivers are generally accepted. The early idea that there was a natural _right of navigation_, and _innocent passage_ has received less support during the nineteenth century than formerly. The history of river navigation during the nineteenth century, as shown in the discussions between the representatives of various nations, and in the treaties and conventions agreed upon, as well as in treaties and declarations voluntarily made in regard to navigation of rivers, seem to furnish general rules.

1. That international law gives to other states no right of navigation of rivers wholly _within_ the jurisdiction of another state.

2. That when a river forms the _boundary_ of two or more states it is open to the navigation of each of the states.

3. That when a river passes _through_ two or more states, international law gives no right to one of the states to pass through the part of the river in the other state or states. There is a strong moral obligation resting upon the states below to allow freedom of navigation through the river to the states upon the upper course of the river. The right of _innocent use_, _innocent passage_, _freedom of river navigation_, has been maintained on various grounds and in various forms, by many authorities.[136] Those who take a position opposed to this claim, assert that the navigation of rivers is, and properly should be, to avoid more serious complications, a matter of convention.

In fact, since the French Revolution, the subject has so frequently been a matter of convention[137] as to establish the general principles, that in case of no special restrictions, river navigation is free, subject to such regulations as the state having jurisdiction may deem necessary, and that the privilege of navigation carries with it the use of the river banks, so far as is necessary for purpose of navigation.[138]

§ 52. Enclosed Waters

(_a_) The rule in regard to =waters wholly within= the territory of a state such as lakes, etc., is that the jurisdiction is exclusively in that state.

(_b_) =Gulfs, bays, and estuaries= are regarded as within the jurisdiction of the state or states enclosing them, provided the mouth is not more than six miles in width. A line drawn from headland to headland on either side of the mouth is considered as the coast line of the state, and for purposes of maritime jurisdiction the marine league is measured from this line. Waters having wider openings into the sea have been claimed on special grounds, as the claim of the United States to territorial jurisdiction over the Chesapeake and Delaware bays. France and Germany claim jurisdiction over gulfs having outlets not over ten miles in width. Between states parties to treaties special claims have been made and allowed. These treaty stipulations do not necessarily bind states not parties to the treaty, _e.g._ treaty between Great Britain and France, 1839. "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."[139]

The present tendency is toward a restricted jurisdiction and the acceptance of the six-mile limit of width of mouth, though there is a reasonable claim that some ratio should be fixed for very large interior water areas to which the entrance, though more than six miles, is yet relatively narrow.

(_c_) =Straits= less than six miles in width are within the jurisdiction of the shore state or states. In case two shores are territory of different states, each state has jurisdiction to the middle of the navigable channel.

Where a state owns both shores of a strait which does not exceed six miles in width, the strait is within its territorial jurisdiction, though other states have the right of navigation. This right of navigation is in general conferred upon both merchant and war vessels of states at peace with the territorial power. These vessels must, however, comply with proper regulations in regard to navigation. The claim to exclusive jurisdiction over such narrow straits has been abandoned.

The claim of the king of Denmark to jurisdiction over the Danish Sound and the Two Belts, which entitled him to levy tolls upon vessels passing through, was based on prescription and fortified by treaties as early as the one with the Hanse towns in 1368. Against these tolls, as an unjust burden upon commerce, the United States protested in 1848, at the same time maintaining that Denmark had not the right of exclusive jurisdiction. The European states in 1855 paid a lump sum in capitalization of the sound dues. The United States, refusing to recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in consideration of Denmark's agreement to keep up lighthouses, etc.

The navigation of the Bosphorus and Dardanelles has been a subject of discussion and treaty since 1774, when Russia compelled Turkey to open these straits to the passage of merchant vessels. War vessels were excluded till 1856 when, by convention attached to the Treaty of Paris, such vessels were admitted for special purposes of service to the embassies at Constantinople and protection of improvements on the Danube waterway. By the Treaty of 1871 the Sultan may admit other war vessels, if necessary for carrying out terms of the Treaty of Paris. The United States has never acknowledged that the Sultan had the right to exclude its war vessels, though always asking permission of the Sultan to pass the Dardanelles.

As a generally accepted principle the law may be stated as follows: straits connecting free seas are open to the navigation of all states, subject of course to reasonable jurisdiction of the territorial power.

(_d_) =Canals= connecting large bodies of water have been regarded as in most respects subject to jurisdiction similar to that of straits. Yet as these canals are constructed at a cost, they must also be given exemptions from certain restrictions which properly apply to natural channels.

The position of the Suez Canal as an international waterway gives some indication of existing practice.

It is to be noted, (1) that the canal is an artificial waterway; (2) that M. de Lesseps, a foreigner, in 1854, under authorization of the Viceroy, undertook its construction as a business venture; (3) that it is wholly within the territory of Egypt.

The case is then one of an artificial waterway, constructed by private capital, wholly within the territory of a state.

The negotiations continued from 1869, when the canal was opened, to 1888, when a convention was signed by the Six Great Powers, and by the Netherlands, Spain, and Turkey, by which the status of the canal was defined. By Article I. of the Conventional Act, "The Suez Maritime Canal shall always be free and open, in the time of war as in the time of peace, to every vessel of commerce or of war, without distinction of flag.

"Consequently, the High Contracting Parties agree not in any way to interfere with the free use of the Canal, in time of war as in time of peace.

"The Canal shall never be subjected to the exercise of the right of blockade."

By Article IV., the canal is not to become the base of hostile action. The marine league is to be respected in the action of foreign vessels. The twenty-four hour period was to elapse between the sailing of hostile vessels.

By Article VII., the powers might keep two war vessels in the "ports of access of Port Said and Suez," though "this right shall not be exercised by belligerents."

By Article X., the territorial jurisdiction for general administrative purposes is affirmed, and likewise for sanitary measures in Article XV.[140]

This Suez Canal of such great international importance is by this convention within the jurisdiction of Egypt, but the powers have assumed to provide that this jurisdiction shall not be exercised in such a way as to prevent innocent passage.

The Panama or Nicaraguan Canal is in part provided for by the Clayton-Bulwer Treaty, between the United States and Great Britain in 1850, but in case of actual operation new agreements would be necessary.[141]

The canal at Corinth, shortening somewhat the route to the Black Sea and Asia Minor, was opened in 1893. This canal does not, like the Suez, greatly change the current of the world's intercourse, and is entirely within the jurisdiction of Greece.

Similarly the canal at Kiel, opened in 1896, is wholly within the jurisdiction of Germany.

§ 53. The Three-mile Limit

One of the most generally recognized rules of international law is that the jurisdiction of a state extends upon the open sea to a distance of three miles from the low-water mark. In the words of the Act of Parliament passed in consequence of the case of the _Franconia_,[142] 1878 (41 and 42 Victoria, c. 73), "The territorial waters of Her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty's dominions." The three-mile limit became more and more generally recognized after the publication of Bynkershoek's "De Dominio Maris," in which he enunciates the principle that the territorial jurisdiction ends where the effective force of arms ends, which being approximately three miles from shore at that time, has since been usually accepted.

For special purposes a wider limit of jurisdiction is maintained and sometimes accepted by courtesy, though it is doubtful whether any state would attempt to hold its position against a protest from another state. The claims are based on the jurisdiction over fisheries, the enforcement of revenue laws, and the maintenance of neutrality. Such claims as the former English claims to the "King's Chambers," announced in 1604 to be bounded by a "straight line drawn from one point to another about the realm of England," as from the Lizard to Land's End, would not now receive serious support; and since the rejection of the claims of the United States by the Bering Sea Tribunal, it can be safely stated that the expansion of territorial jurisdiction upon the open sea will only come through the consensus of states. The desirability of some new regulations upon marine jurisdiction was well shown in the discussions of the Institute of International Law at its meeting in Paris in 1894.[143]

Within the three-mile limit the jurisdiction extends to commercial regulations, rules for pilotage and anchorage, sanitary and quarantine regulations, control of fisheries, revenue, general police, and in time of war to the enforcement of neutrality.

§ 54. Fisheries

The existence of fisheries has given rise to some special claims to extension of maritime jurisdiction.

(_a_) As a general rule, the right of =fishing on the high sea= belongs to all states alike, but each must respect the rights of others. In order that these rights might be defined, it has in many cases been necessary to resort to conventions. One of the most recent examples of this kind is seen in the convention in regard to the North Sea Fisheries, May 6, 1882, to which Belgium, Denmark, France, Germany, Great Britain, and Holland are parties. The cruisers of any of these states may present the case of the fishing vessel violating the regulations of the convention in the country to which the vessel belongs, but the trial and penalty belong to the country of the vessel.[144]

(_b_) Special privileges granted by one state to another, or secured by custom, become servitudes, as in the case of the =Canadian= fisheries, and must depend upon the interpretation of the treaties by which they were granted.

By the Treaty of 1783 the United States have the right of fishing on certain parts of the coast of the British Dominion in North America.

Great Britain claimed that these rights were annulled by the Treaty of Ghent, 1814, which put an end to the War of 1812 as that treaty was silent upon the subject. The United States declared "they were not annulled by the war as they were enjoyed by the colonists before the separation from England in 1783, and so existed perpetually independent of treaty."

This claim was adjusted by the Treaty of 1818, which gave to the United States permission to take fish on certain parts of the coast of Newfoundland and Labrador, to dry and cure fish in certain inlets, and to enter other inlets for shelter, repairs, and supplies.

Disputes arising under this treaty were settled by the Treaty of 1854, which gave to Canadian fishermen certain rights of fishing along the eastern coast of the United States north of the thirty-sixth parallel of latitude.

The United States took action to terminate this treaty in accord with its terms in 1866. The conditions of the Treaty of 1818 revived.

The Treaty of Washington, 1871, practically reëstablishes the provisions of the Treaty of 1854, specifying that the difference in value between the rights granted by each state to the other should be determined by a commission. This commission awarded $5,500,000 to Great Britain in 1877.[145]

In accord with the provisions of the Treaty of 1871, it was terminated by the United States in 1886, the provisions of the Treaty of 1818 again coming in force.

A law of March 3, 1897,[146] provides that the President may in certain contingencies deny vessels of the British Dominions of North America entry into the waters of the United States, and may also prohibit the importation of fish and other goods.

(_c_) Another question which has given rise to much discussion is that of the =seal-fishing in Bering Sea=.[147]

In 1821 Russia claimed that the Pacific north of latitude 51° was _mare clausum_. The United States and Great Britain denied this claim. By conventions, 1824 and 1825, Russia conceded to these nations rights of navigation, fishing, etc. After the United States in 1867 acquired Russian America, seal-fishing assumed importance. As the Canadian fishermen were not restrained by the laws binding the United States fishermen, it was feared that the seal would become extinct. In 1886 three Canadian schooners were by decree of the district court of Sitka confiscated for the violation of the laws of the United States in regard to seal-fishing, the judge charging the jury that the territorial waters of Alaska embraced the area bounded by the limits named in the treaty of cession to the United States of 1867 as those "within which the territories and dominion conveyed are contained."[148] This act with others of similar character led to a formal protest by Great Britain.

The questions in dispute were referred to a court of arbitration which decided against the claims of the United States, denying that the sea referred to as the Bering Sea was _mare clausum_, and denying that the United States acquired jurisdiction by prescriptive right from Russia in 1867. It was also decided that the United States had no right of property in the seals in the open sea, and that the destruction of these animals was contrary to the laws of nature. The United States and Great Britain, however, entered into an agreement in regard to the protection and taking of the seals by their subjects. Other nations were also to be asked to become parties to the agreement.[149]

It may be regarded as finally established that fishing in the open sea is free to all, though of course states may by conventions establish regulations which shall be binding upon their subjects.

§ 55. Vessels

At the present time every vessel must be under the jurisdiction of some state.

(_a_) =Classes.=--Vessels are divided into two general classes.

(1) _Public vessels_, which include ships of war, government vessels engaged in public service, and vessels employed in the service of the state and in command of government officers.

(2) _Private vessels_, owned by individuals and under regulations varying in different states.

(_b_) The =nationality= of a public vessel is determined by its flag. In an extreme case the word of the commander is held to be sufficient proof.

In case of a private vessel the flag is a common evidence, but in case of doubt the vessel must show to proper authorities its papers which certify its nationality.

(_c_) The general exercise of =jurisdiction over vessels= is as follows:--

(1) Upon the high seas and _within its own waters_ the jurisdiction of a state over its public and private vessels is exclusive for all cases.

(2) Over _public vessels in foreign waters_, the jurisdiction of the state to which a public vessel belongs is exclusive for all matters of internal economy. The vessels are subject to port regulations in matters of anchorage, public safety, etc. As Dana says in his note to Wheaton, "It may be considered as established law, now, that the public vessels of a foreign state coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits."[150] In general practice the waters of all states are open to the vessels of war of all other states with which they are at peace. This is a matter of courtesy and not of right, and is in fact sometimes denied, as by the provision of the Treaty of Berlin, 1878, "The port of Antivari and all the waters of Montenegro shall remain closed to the ships of war of all nations."[151] Various regulations may require, without offence, notice of arrival, probable duration of stay, rank of commander, etc.

The boats, rafts, etc., attached to a vessel of war are regarded as a part of the ship while engaged in the public service.

While there is some difference of opinion as to the immunities of the persons belonging to a ship of war in a foreign harbor, a generally admitted rule seems to be that while the persons of a ship of war are engaged in any public service that is not prohibited by the local authorities, such persons are exempt from local jurisdiction. The ship's crew would not be arrested and detained by local authorities for minor breaches of local regulations, though they might be sent on board their vessel with statement of reasons for such action. If the action of the crew constitutes a violation of the law of the country to which they belong, the commander of the ship may punish them, and report his action to the local authorities. In case of crimes of serious nature the commander may turn the offenders over to the local authorities, but must assure them a fair trial.

The commander of a vessel is, of course, always responsible to his home government, and his action may become the subject of diplomatic negotiations.

The question of _right of asylum_ on board a ship of war has been much discussed. _First_, Most civilized states now afford asylum on board their ships of war to those who, in the less civilized regions, flee from slavery.[152] _Second_, In cases of revolution ships of war sometimes afford refuge to members of the defeated party, though the ship of war may not be used as a safe point from which further hostilities may be undertaken. _Third_, A commander may afford asylum to political refugees under circumstances which he thinks advisable. _Fourth_, In cases where asylum is granted to offenders whether political, or (in case of treaty right) criminal, if the request of the local authorities for the release of the criminal is refused by the commander of the ship, there is no recourse except to the diplomatic channels through extradition.

The immunities granted to vessels of war are also generally conceded to other vessels strictly upon public service, _e.g._ carrying an ambassador to his post. The largest possible exemption is given to a vessel conveying the sovereign of a state. Vessels transporting military forces in command of regularly commissioned government officers are usually granted immunities accorded to men-of-war.

(3) Over _private vessels in foreign waters_ the amount of jurisdiction claimed by different states varies.

The principle which is meeting with growing favor, as shown by practice and by treaty stipulation, is stated by Chief Justice Waite in 1886 as follows, "Disorders which disturb only the peace of the ship, or those on board, are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction."[153]

The position of France is, briefly, to assume no jurisdiction over foreign merchantmen within her ports save in cases where the act affects some person other than those belonging to the ship, where the local authorities are expressly called upon to interfere, or, when the order of the port is disturbed.[154]

The British Territorial Waters Jurisdiction Act of Aug. 28, 1878, gives jurisdiction to the authorities over all acts committed within the marine league, even though the ships are not anchored but merely passing through territorial waters.[155] This is an extreme position, and not supported by the best authorities, even in Great Britain.

The position of France, as stated above, is open to little objection either in practice or theory, and is more and more becoming a form of treaty agreement, and may be considered generally approved. Where these principles are adopted the jurisdiction of breaches of order within the ship may be referred to the home consul at the port, who has jurisdiction, and if necessary may call upon the local officers to assist him in enforcing his authority.

(4) In recent years special exemption from jurisdiction has been accorded to certain _semi-public_ vessels engaged particularly in the postal and scientific service. Vessels in the postal service have by treaties been accorded special freedom from customs and port regulations; and by the Convention between Great Britain and France, Aug. 30, 1890 (Art. 9), it is agreed that in time of war such vessels shall be free from molestation till one of the states shall give formal notice that communication is at an end.

§ 56. Jurisdiction over Persons--Nationality

Under the discussion of jurisdiction of the state over persons comes the question of nationality. Nationality involves the reciprocal relations of allegiance and protection on the part of the person and state. It corresponds to citizenship in the broad sense of that term. In general a state may exercise jurisdiction over its own subjects or citizens as it will, and the relations of a state to its citizens are matters of municipal law only.

A state exercises jurisdiction over all persons within its limits except certain officers of other states by exterritoriality entitled to exemption from local jurisdiction. In some of the Eastern states citizens of Western states are by treaty exempt from certain local laws. This last exemption may properly be said to be by local law, as a treaty becomes a part of the state law for the subjects upon which it touches.

The jurisdiction also varies with the status of the person as regards his relations to other states. The conflict of laws in regard to nationality forms an important part of _private international law_.

§ 57. Jurisdiction over Natural-born Subjects

Children born within a state of which the parents are citizens are natural-born subjects of that state. Such persons are fully under the local jurisdiction.

Foundlings, because of the uncertainty of parentage, are considered subjects of the state in which they are found.

Illegitimate children take the nationality of the mother, provided they are born in the state of which the mother is subject.

The great bulk of the population of all states, except those most recently founded, is natural-born, and therefore fully under local jurisdiction.

§ 58. Foreign-born Subjects

It is the general principle that each state determines citizenship by its own laws. The status of persons born abroad may become very uncertain by virtue of the conflict of laws of the state of which one or both the parents are citizens and the state in which the child is born.

These laws in regard to children born to parents while sojourning in foreign countries may be classified as follows:--

(_a_) The child born in the foreign country is a subject of the state of which his parents are citizens. That the child inherits the nationality of his father is a common maxim known as _jus sanguinis_. The United States law says, "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."[156] The _jus sanguinis_ is followed by Austria,[157] Germany,[158] Hungary,[159] Sweden,[160] Switzerland,[161] and by some of the smaller European states.

(_b_) Certain states follow the rule of _jus soli_, maintaining that the place of birth determines the nationality. Great Britain, by Article 4, of the Act of May 12, 1870, adopts this principle. By the Fourteenth Amendment of the Constitution of the United States, "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The laws of the United States have given rise to many questions.[162] Portugal and most of the South American states follow the _jus soli_.

(_c_) Other states follow sometimes the _jus sanguinis_, sometimes _jus soli_, and sometimes modifications of these laws. The laws of Belgium and Spain regard the child of an alien as an alien, though on attaining majority the child may choose the citizenship of the country of his birth. The French laws of June 26-28, 1889, and July 22, 1893, consider as subjects the children born abroad to French citizens, also the children of foreigners born in France, unless these children within one year after attaining majority elect the nationality of their parents. Most states allow the descendants born to foreigners sojourning within their limits to elect their allegiance on attaining majority. Switzerland, however, strongly maintains the _jus sanguinis_, without according any choice to the descendants born to foreigners within her limits, or to her own subjects born abroad except by formal renunciation of citizenship. Thus the child of a citizen of Switzerland born in France would be by French law a citizen of France, and by Swiss law a citizen of Switzerland.

By the law of Germany, a citizen of Germany sojourning more than ten years abroad without registration at his consulate loses his German citizenship, without necessarily acquiring the citizenship of the country of his sojourn, thereby becoming _heimatlos_, or a "man without a country."

At the present time the laws in regard to descendants born to parents sojourning in a foreign state show the widest diversity and give rise to unfortunate complications.[163]

§ 59. Jurisdiction by Virtue of Acquired Nationality

The jurisdiction of a state extends to those who voluntarily acquire its citizenship.

(_a_) A woman in most states =by marriage= acquires the nationality of her husband. In some of the South American states the husband acquires the citizenship of his wife. By the law of Belgium, Aug. 6, 1881, and by the law of France, June 26, 1889, it was made easier for foreigners who had married women natives of those states to acquire Belgian or French nationality respectively. The United States law, while holding that a woman marrying a citizen of the United States acquires his nationality, does not hold that an American woman on marrying a foreigner thereby becomes expatriated, unless she takes up her residence in her husband's state.[164]

(_b_) A state may acquire jurisdiction over persons =by naturalization=, which is an act of sovereignty by which a foreigner is admitted to citizenship in another state. The method of naturalization is in accord with local law and varies greatly in different states.[165] The law of the United States prescribes that Congress has power "to establish an uniform rule of naturalization."[166] The foreigner desiring naturalization in the United States must declare on oath before a court after three years of residence in this country, his intent to become a citizen, and, after he has remained here two years longer he must take an oath of allegiance to the United States and of renunciation of his former country. An alien who has resided in the United States the three years next preceding the attaining of his majority and who continues to reside in this country at the time of his application, may, after reaching twenty-one years of age, and after residing here five years including the three years of minority, become a citizen by making a declaration at the time of admission.[167]

(_c_) A state may acquire jurisdiction over persons =by annexation of the territory= upon which they reside. The territory may be acquired by cession, exchange, purchase, conquest, etc. The conditions of the transfer of allegiance from the state formerly possessing the territory is usually fixed by the treaty. This transfer is known as collective naturalization.

Ordinarily a right to choose the allegiance to either state is left to the inhabitants of an annexed territory. Removal from the new jurisdiction is usually required if the inhabitant does not choose to change his allegiance. If the inhabitant does not take any action, it is held that he thereby tacitly transfers his allegiance unless there are special treaty provisions.[168]

(_d_) =The effect of naturalization=, whatever the method, is to make the person a citizen of the state into which he is admitted, and over him that state has jurisdiction in all places outside the jurisdiction of the state whose allegiance he has forsworn.

There is conflict of the laws determining the relations to his native state of a person who has renounced his allegiance to one state by naturalization in another state. The general law is, that he becomes entitled to all the privileges of a subject of the state of his new allegiance, except that when he is within his first state he becomes liable for the performance of any obligation which he may have incurred prior to his naturalization.[169]

A state may determine what conditions must be fulfilled in order to constitute a valid severance of allegiance. Laws are diverse upon this subject. Many states have maintained, and some still maintain, that allegiance is inalienable.[170] England formally maintained this principle till 1870, and her attempts to enforce the principle brought on the War of 1812 with the United States.

In certain countries, as in the United States and Switzerland, minor children are held to follow the allegiance of their father in case of naturalization. The French law claims that the minor child's nationality is that of his birthplace. The subject has been determined in some instances by treaty stipulation, yet must be considered, like many questions of naturalization, as unsettled.

Many states distinguish in law and more in practice between that naturalization which carries with it protection of the state and allegiance of the subject (_naturalisation ordinaire_) and that naturalization which carries full political privileges (_grande naturalisation_).

(_e_) =Incomplete naturalization.= The fact that a person has taken the preliminary steps toward acquiring the nationality of a foreign state, by making a declaration of his intention or otherwise, may give the state to which the person has assumed an inchoate allegiance the right of protection of the declarant against third states,[171] though not necessarily against the native state of the declarant.[172] Of the privileges to be accorded to one who has declared his intention to become a citizen of the United States, Secretary Marcy said, "The declaration, indeed, is _prima facie_ evidence that the person who made it was, at its date, domiciled in the United States, and entitled thereby, though not to all, to certain rights of a citizen, and to much more consideration when abroad than is due to one who has never been in our country; but the declarant, not being a citizen under our laws, even while domiciled here, cannot enjoy all the rights of citizenship either here or abroad;"[173] and Mr. Marcy also says of the papers proving domicile, "And to this simple certificate ... the European authorities are at liberty to pay such respect as they think proper."[174]

In 1853 a case arose in which the United States affirmed: "It is a maxim of international law that domicile confers national character; ... international law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen."[175] This statement was made in support of the position assumed by the United States in the case of one Martin Koszta. Koszta, a Hungarian refugee of 1848-1849, went to Turkey, was imprisoned, later was released on condition of leaving the country, went to the United States, declared his intention to become a citizen, and in 1853 returned to Turkey. He went into business at Smyrna, obtained there a traveling pass certifying that he was under protection of the United States, was seized, thrown into the sea by persons employed by the Austrian consulate, and was picked up by an Austrian man-of-war, _Hussar_. The consul of the United States remonstrated, but the captain of the _Hussar_ held Koszta. The chargé d'affaires requested the aid of a United States man-of-war, whose captain demanded Koszta's release. To avoid conflict in the port the mediation of the French consul was accepted, and Koszta was intrusted, pending settlement of claims, to the French consul. Finally Koszta was allowed to return to the United States, though Austria maintained her right to proceed against him if he returned to Turkey. The United States in this case undoubtedly took an extreme position in its claim of jurisdiction.

By an act of March 3, 1863, the United States declared that those who had taken the preliminary oath of intention to become citizens were liable to military service. Upon protest by foreign nations against this act of Congress, the President, by proclamation, announced that, as it had been claimed that "such persons, under treaties or the law of nations, retain a right to renounce that purpose, and to forego the privileges of citizenship and residence within the United States, under the obligations imposed by the aforesaid act of Congress,"[176] to avoid all misapprehension, the plea of alienage would be accepted for sixty-five days, during which time such persons as had only declared their intention to become citizens might depart.

The position in the Koszta case, where the claim to the protection of the United States was made when the inchoate citizen was in trouble, and the claim of the inchoate citizens to renounce their allegiance when the state was in difficulties, show some of the problems to which the diverse laws and practices in regard to naturalization have given rise.

The municipal laws of some of the local states of the United States admit to all political privileges of the local state those who have taken the first steps toward naturalization. It is generally conceded that such as have exercised the privileges of full citizens can properly be held to the obligations of full citizens, as was declared in the above proclamation.

The inconsistencies in regard to jurisdiction over those naturalized or incompletely naturalized are gradually yielding to treaty provisions which distinctly determine the position of such persons.

§ 60. Jurisdiction over Aliens

Citizens of one state, when sojourning in a foreign state, have a dual relationship by which they may claim certain privileges, both from their native state and from the foreign state.

(_a_) The native state naturally has =jurisdiction= of a qualified sort =over= its =subjects= even when they are =in a foreign state=.

(1) The right to make _emigration laws_ may lead to restrictions binding in a foreign state. A state may banish its subjects. No other state is obliged to receive them, however.

(2) A state may _recall its citizens for special reasons_, as in the case of Greece in 1897, when Greek citizens were recalled for military service.

(3) There is much difference of opinion upon the question of _penal jurisdiction_ of the native state over its subjects who have committed crimes in a foreign state. In general American and English authorities agree that penal law is territorial. Some of the continental authorities take the view that a citizen on his return may be punished for crimes committed in a foreign state. The English law takes this position in certain crimes, as treason, bigamy, and premeditated murder. Usually a crime committed upon a vessel in a foreign harbor is held as within the jurisdiction of the state of the vessel's registry.

(4) A state may interfere to _protect its subjects_ in a foreign state, thus extending its authority in their behalf. This has been frequently done to protect Western sojourners in Eastern states, _e.g._ the demands of Germany, in 1898, for concessions from China on account of injuries to missionaries. These demands, accompanied by a naval demonstration, resulted in the cession of Kaio-Chau.

(_b_) The =jurisdiction= of a =state over aliens within its territory= is very extensive.

(1) The absolute right of _exclusion_ of all foreigners would hardly be maintained by any civilized state, though it could be deduced from the doctrine of sovereignty. Whether justly or not, Japan and China have been compelled by force to cede certain rights to states demanding admission for their citizens.

(2) The right of _expulsion_ is, however, generally maintained. This right should, however, be exercised most carefully, as the fact of admission carries with it some obligation on the part of the admitting state.

(3) The right to _conditional admission_ is generally allowed, as seen in laws in regard to immigration.

(4) The foreign state may impose such restrictions upon _settlement_ as it sees fit.

(5) A foreign state may _levy_ such _taxes_ upon the person and goods of aliens as are in accord with state law.

(6) Aliens are subject to the local _sanitary and police jurisdiction_.

(7) The foreign state has _penal jurisdiction_ over aliens for crimes committed within territorial limits, and many states maintain, also, for such crimes as plotting against the state, counterfeiting state money, or crimes directly imperiling the state's well-being even when committed outside of state limits.

(8) The state may require aliens to render service such as is necessary to _maintain public order_, even military service, to ward off immediate and sudden danger, _e.g._ as an attack by savages, a mob, etc., but

(9) A state cannot compel aliens to enter its _military service_ for the securing of _political ends_, or for the general ends of war.

(10) In nearly all states _freedom of commerce_ is now conceded, the state giving to native and foreigner similar privileges. China still restricts trade to certain free ports.

(11) The _holding and bequeathing of property_ of whatever sort is subject to local law.

(12) _Freedom of speech and of worship_ are also subject to local law.

All these laws are subject to the exemptions in favor of sovereigns, diplomatic agents, etc.

(_c_) Ordinarily the identity of an alien is established by a =passport=. This may also secure for him a measure of care in a foreign state. Below is the form of passport.

Good only for two years from date.

UNITED STATES OF AMERICA

+Department of State+

_To all to whom these presents shall come, Greeting_:

I, the undersigned, Secretary of State of the United States of America, hereby request all whom +DESCRIPTION+ it may concern to permit

Age.... Years..................... Stature... Feet... Inches..., Eng. .............. ..............., Forehead.......................... a Citizen of the United States, Eyes.............................. ........................ safely Nose.............................. and freely to pass, and in case Mouth............................. of need to give ... all lawful Chin.............................. Aid and Protection. Hair.............................. Complexion........................ Given under my hand and the Face.............................. Seal of the Department of State, at the City of Washington, the (+SEAL+) ... day of ....... in the year 19..., and of the Independence of (Signature of the Bearer) the United States the one hundred .................................. and.................

No..... ................

§ 61. Exemptions from Jurisdiction--General

As a general principle, the sovereignty of a state within its boundaries is complete and exclusive. For various reasons there has grown up the custom of granting immunity from local jurisdiction to certain persons generally representing the public authority of a friendly state. This immunity may extend to those persons and things under their control.

This immunity has been called exterritoriality. The persons and things thus exempt from local jurisdiction are regarded as carrying with them the territorial status of their native state, or as being for purposes of jurisdiction within their own state territory, and beyond that of the state in which they are geographically. Wherever they may go they carry with them the territory and jurisdiction of their home state. Doubtless this doctrine of exterritoriality in the extreme form may be carried too far, as many late writers contend, and some have desired another term, as immunity from jurisdiction, as more exact and correct.[177] Such a term would have the merit of directing attention to the nature of the relation which the persons concerned sustained to the state. Hall sums up the case by saying, "If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested."[178] Exterritoriality should be viewed as based on the immunities conceded to public persons, rather than as the source of these immunities.

§ 62. Exemption of Sovereigns

Sovereigns sojourning in their official capacity in foreign countries are exempt from local jurisdiction. This principle is based, not merely upon courtesy, but also upon convenience and necessity. The sovereign represents the state, and therefore cannot be subjected to the jurisdiction of another state without waiving the sovereignty, and in so far depriving the state of one of its essential qualities. Nor can the visiting sovereign exercise any authority which would infringe the sovereign powers of the state in which he is. The visiting sovereign can only claim immunity for such action as is in accord with the necessities of his convenient sojourn. He, his retinue, and effects, are exempt from civil and criminal jurisdiction. He is free from taxes, duties, police and administrative regulations. In the case of Vavasseur _v._ Krupp, 1878, it was decided that infringement of the patent law did not constitute a ground for suit against a sovereign. In this case Vavasseur brought action against Krupp for infringement of patent on shells in custody of the agents of the Mikado of Japan. The action resulted in an injunction preventing removal of the shells to the Mikado's ships, but on application of the Mikado to remove the shells as his property, the court held that, even if the property in question infringed a patent, the Mikado could not be sued and his property could not be held.[179] The principle that the sovereign is free from suit has frequently been decided by the courts of various countries. A sovereign sojourning in a foreign state cannot, however, set up his courts and execute judgment; such functions belong to his territorial courts. Criminals in his retinue must be sent home for trial. While the sovereign's _hôtel_ or place of residence while abroad is exempt from local jurisdiction, the sovereign is not justified in allowing the _hôtel_ to become an asylum for others than members of his retinue. On demand he must give up such refugees. In case the sovereign does not observe this principle or commits acts liable to endanger the peace of the foreign state, the authorities may invite him to depart, or if necessary expel him by force.

The sovereign may, in his private capacity, hold property and become party to a suit like any citizen.[180] A sovereign may travel _incognito_, and is then entitled only to the recognition accorded to the rank which he assumes. He can, however, assert his sovereign capacity and obtain its immunities at any time should he deem it proper.

§ 63. Exemptions of State Officers

(_a_) =Diplomatic agents=, or those commissioned to transact the political affairs of the state abroad, are conceded a wide immunity from local jurisdiction. As representing the political will of their state, diplomatic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or _hôtel_, (8) and from the exercise of similar authority over his household, official and unofficial.

(_b_) The exemptions granted to =consuls= vary in different states and under different circumstances. In general they are entitled to such exemptions as will enable them to perform their functions effectively.[181]

(_c_) Any foreign =army= within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his opinion: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.... The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, which the government of his army may require."[182] Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn.

The military attaché of an embassy is regarded as a member of the official household of the diplomatic agent.

(_d_) =Navy.= As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not."[183]

In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends: (1) to acts beginning and ending on board the vessel;[184] (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port (it was held in case of the United States frigate _Constitution_, in 1879, that she was not liable to salvage charges;[185] the vessel is therefore liable to quarantine, anchorage, etc., rules which imply no derogation of sovereignty); (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities.

A commander cannot pursue deserters on shore or exercise external authority.

Hall sums up the general principle as follows, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction."[186]

In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels.

§ 64. Special Exemptions

(_a_) In certain =Oriental states=, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends upon the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions,"[187] and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.[188] The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states.

The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.

(1) _Penal Matters._ If a native commits a crime against a foreigner, he is generally tried in the local court.

If a foreigner commits a crime against a native, he is generally tried in the consular court of his state.

If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner.

If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state.

If the crime is a grave one, such as murder, sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial.

(2) _Civil Matters._ In cases involving a foreigner and a native, the trial is generally by agents of the two countries.

In cases involving subjects of the same state, their consular court has jurisdiction.

In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction.

In cases involving large interests, there is an appeal from the consular to the higher courts of the state.

In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.[189]

(_b_) =In Egypt mixed courts= were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.[190]

The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls. These courts have been the subject of much discussion and great difference of opinion.

§ 65. Extradition

Extradition is the act by which one state delivers a person accused of crime committed beyond its borders to another state for trial and punishment.

Many of the Continental states maintain that extradition is a duty binding upon all civilized states, on the ground that the prevention of crime which would result from certainty of punishment is an object to be sought by all for the general good. Grotius, Vattel, Kent, Fiore, and many other authorities maintain this position. Bluntschli, Foelix, Klüber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the majority of authorities make the basis of extradition the conventional agreement of treaties.[191] The large number of extradition treaties of the last half of the nineteenth century has made the practice general. Occasionally a state has, in the absence of treaties, voluntarily surrendered fugitives from justice as an act of courtesy. The extradition of Tweed by Spain in 1876 was an act of this kind.[192] Such cases are not common, however,[193] and it is safe to derive the principles from the general practice as seen in treaties.

(_a_) =Persons liable to extradition= vary according to treaties. It is the general practice to surrender on demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects.[194] The practice is not uniform in the relations of these states to other states, as is shown in their treaties. The South American and Continental European states hold that their own citizens are not liable to extradition.

A large number of the modern writers are in favor of the extradition of subjects in the same manner as aliens, and it is evident that the drift of international practice, as shown by the treaties of the last quarter-century, is toward the refusal to grant protection to a subject who has sought refuge in his native state after committing a crime abroad.

In case the accused whose extradition is demanded is a citizen of a third state, the practice is not uniform, though the best authorities seem to favor the granting of the extradition only after communication with and assent of the third state, on the ground that the state to which the subject has fled is responsible to the third state for its treatment of him. This practice has been followed in many European treaties.

Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. During the last quarter of the nineteenth century few treaties have been made which do not make political criminals specifically non-extraditable. Political crimes accompanied by attacks upon the person of the sovereign or of those holding political office or position are not, however, in the above category, but are usually extraditable.

(_b_) Even when an accused person is extradited there are =limitations= as to the jurisdiction of the state to which he goes. The trial must be for the offense or offenses enumerated in the treaty. For example, a treaty between two states enumerates among extraditable crimes murder, and does not enumerate larceny. A fugitive from one of the countries is accused of both murder and larceny. The country surrendering the criminal would not permit the trial of the criminal for any other crime than murder, until the criminal should have had opportunity to return to the state from which he was surrendered. For many years Great Britain claimed that a person surrendered in accordance with an extradition treaty should be tried only for the specific offense for which he was surrendered. The United States desired to include other offenses provided the person had been once surrendered. This position of Great Britain was accepted by the treaty of July 12, 1889.[195]

(_c_) =The conditions necessary= for a claim for extradition are: (1) that the crime shall have been committed within the territorial or maritime jurisdiction of the state making the demand, (2) that there be sufficient evidence of guilt to establish a case, and (3) that the application be from the proper authority and in the proper form.[196]

(_d_) The =procedure= in cases of extradition is based on definite principles. As it is an act of sovereignty, it must be performed by agents of the sovereign person, who for this purpose, although generally engaged in other functions, are executive officers.[197] The general rule is that the demand for extradition shall be made through the ordinary diplomatic channels. In colonies and under special circumstances an officer of first rank may be the medium of the demand.

The person demanded may be placed under provisional arrest pending the full proceedings of extradition.[198]

Reasonable evidence of the identity of the person and of the facts of the crime must be furnished by the state making the demand.

In case a person is demanded by two states, his native state and a third state in which he has committed a crime, it is customary to grant the request of the state in which he has committed the crime.

When a person is demanded on the ground of separate crimes committed in both states as above, if the crimes are equally grave, the request of his native state is granted. Sometimes, however, when the third state offers to surrender the fugitive to his native state after he has paid the penalty of his crime, the request of the third state is granted.

When the crime committed in one state is more grave than that committed in another, the request of the state maintaining the graver charge is granted.

When states other than the native state request the extradition of a fugitive, the state receiving the demand may take into consideration the gravity of the offense and the probability that a given state will, after securing justice, make it possible for other states to prosecute their claims. In cases of equal gravity priority of demand usually determines the course of action.[199]

If the person demanded is accused of a crime in the state of refuge, the demand for his extradition may be refused pending his trial in the state of refuge.

Many other questions arise which complicate the actual procedure in cases of extradition, but these belong mainly to the realm of _private international law_.

§ 66. Servitudes

Servitudes in international law constitute a restriction upon the exercise of the territorial jurisdiction of a state in favor of one or more states.

(_a_) =International servitudes= are:--

(1) _positive_, implying that a state is under obligation to permit within its territory another state to exercise certain powers, as by the Treaty of Berlin, 1878, Art. XXIX. "The administration of the maritime and sanitary police, both at Antivari and along the coast of Montenegro, shall be carried out by Austria-Hungary by means of light coastguard vessels;"[200]

(2) _negative_, implying that a state is to refrain from certain acts, otherwise customary, as "Montenegro shall neither have ships of war nor flag of war."[201]

Among the _positive servitudes_ are: those obligations of a state to allow within its own jurisdiction the exercise of political or administrative authority by another state, as in the execution of judicial or police regulations; those obligations to allow the exercise of military authority, as in military occupation of a portion of the territory or the passage of troops. Among the _negative servitudes_ are: those obligations of a state to refrain from exercising within its own jurisdiction certain political or administrative authority which might be exercised, if the servitude did not exist, as in the exemption of the citizens or corporate persons of certain states from certain acts of jurisdiction or taxation; those obligations to refrain from military acts, such as the limitation of the army or navy to a certain number, or the obligation not to fortify a certain place.

(_b_) There are also servitudes which may be called =general=, because binding alike upon every state in favor of all others, such as the innocent use of territorial seas.[202]