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]