{21} LECTURE II.
OF THE RIGHTS AND DUTIES OF NATIONS IN A STATE OF PEACE.
A VIEW of the rights and duties of nations in peace will lead us to examine the grounds of national independence, the extent of territorial jurisdiction, the rights of embassy and of commercial intercourse.
1. Right of Interference with other States. — Nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality, and entire independence of all distinct states, is a fundamental principle of public law. It is a necessary consequence of this equality that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of internal policy, to another. No state is entitled to take cognizance or notice of the domestic administration of another state, or of what passes within it as between the government and its own subjects, (a) The Spaniards, as
(a) Grotius, de Jure Belli et Pacis, b. 1, c. 3, sec. 8; Vattel, Droit des Gens, b. 2, c. 4, sec. 54; Rutherforth's Inst. b. 2, c. 9. The principle of non-interference with the internal policy and government of other states was emphatically declared by England and France in the autumn of 1830, and new strength and solidity were thereby given to national freedom and independence. But the right of intervention exists when impending danger requires it, as when it is necessary to prevent aggression by preventing the dangerous accumulation of the means of attack. An interference to preserve the balance of power among neighboring nations is another case of the utmost moment and difficulty, and requires the most grave and comprehensive consideration. Such intervention has, within the last two centuries, been very frequent, and led to extensive and destructive wars. But it was necessary and just in some of the instances, and pre-eminently so with England in 1803, and with Austria in 1813, under the dangerous preponderance and inveterate aggressions of France. "No governments," said General Washington (Sparks's Writings of Washington, xi. 382), "ought to interfere with the internal concerns of another,
Vattel observes, violated all rules of right, when they set up a tribunal of their own to judge the Inca of Peru according to their laws. If he had broken the law of nations {22] in respect to them, they would have had a right to punish him; but when they undertook to judge of the merits of his own interior administration, and to try and punish him for acts committed in the course of it, they were guilty of the grossest injustice. No nation had a contention within itself, but the ancient Romans, with their usual insolence, immediately interfered, and with profound duplicity pretended to take part with the oppressed for the sake of justice, though in reality for the purpose of dominion. It was by a violation of the right of national independence that they artfully dissolved the Achæan league, and decreed that each member of the confederacy should be governed by its own laws, independent of the general authority. (a) But so surprisingly loose and inaccurate were the theories of the ancients on the subject of national independence, that the Greeks seem never to have questioned the right of one state to interfere in the internal concerns of another. (b) We have several instances within time of memory, of unwarrantable and flagrant violations of the independence of nations. The interference of Russia, Prussia, and Austria in the internal government of Poland, and first dismembering it of large portions of its territory, and then finally overturning its constitution, and destroying its existence as an independent power, was an aggravated abuse of national right. There were several cases which preceded or which arose during the violence of the French Revolution which were unjustifiable invasions of the rights of independent nations to prescribe their own forms of government, and to deal in their discretion with their own domestic concerns. Among other instances, we may refer to the invasion of Holland by the Prussian arms in 1787, and of France by the Prussian arms in 1792, and of wars fomented or declared against all monarchical forms of government by the French rulers during {23} the early and
except for the security of what is due to themselves." War may be engaged in behalf of our neighbors, if it be very certain that we must suffer by their ruin. Tua res agitur, paries quum proximus ardet. Heinecc. Elem. Jur. Nat. et Gent. b. 2, c. 9, sec. 107.
(a) Livy, b. 33, c. 30; Floras, b. 2, c. 7; Montesq. Consid. sur les Causes de la Grand. des Rom. c. 6.
(b) Mitford's Hist. of Greece, T. 127.
more intemperate stages of their revolution. We may cite also the invasion of Naples by Austria in 1821, and the invasion of Spain by France in 1823, under the pretext of putting down a dangerous spirit of internal revolution and reform, as instances of the same violation of the absolute equality and independence of nations, (a)1 (x)
(a) The British government declined being a party to the promulgated doctrines and proceedings of the congress of the great powers of continental Europe at Troppau and Laybach in 1821, and at Verona in 1822, and which gave sanction to the invasion of Naples and Spain. It was not supposed by Great Britain that there existed in either of those instances a case of such direct and imminent danger to the safety of other states, as to warrant, upon principles of international law, a forcible interference. The allied sovereigns who assembled at Laybach and Verona do not appear to have differed essentially with Great Britain as to the general principles which ought to regulate the interference of other states in the internal affairs of Naples and Spain, but they differed in the application of those principles to the cases before them. They justified their interference on the ground that it was "necessary for protecting Italy from a general insurrection, and the neighboring states from the most imminent dangers;" "that there existed a vast conspiracy against all established power, and against all those rights consecrated by that social order under which Europe had enjoyed so many centuries of glory and happiness." "That, in respecting the rights and independence of all legitimate power, they regarded as disavowed by the principles which constitute the public right of Europe, all pretended reform operated by revolt and open hostility." Their object was to
1 The origin of the doctrine of equality will be found clearly explained in Maine, Anc. Law, c. 4. For a historical sketch brought down to the present time, see
Abdy's Kent, c. 2, pp. 46-88; Wheat pt. 2, c. 1, Lawrence's note 53, and addenda, p. 996; Wheat. Dana's note 41.
(x) Treaties of Protection are treaties in the nature of Unequal Alliance, from which they are principally distinguished by the keeping of a garrison within the Protected State. Swiss' Rights of Nations in Time of Peace (2d ed.), § 247. Thus the seven islands which form the Ionian group, being constituted a sort of commonwealth by the Treaty of Vienna in 1815, were consigned to the protectorate of Great Britain, which had the right of maintaining garrisons in them, and which so held them until 1862, when they were delivered over to the kingdom of Greece. See The Ionian Ships, Spinks' Prize Cases, 193; 1 Phillimore's Int. Law, 101; 50 Albany L. J. 345; 25 Revue de Droit
Int. 230, 466; 26 id. 631; 27 id. 49, 355; 21 Journal du Droit Int. 754.
When a protectorate is established by one nation over another, the essential rights of sovereignty, if retained, must be retained de facto as well as de jure; otherwise it will be regarded as a mere dependence of the governing Power. See 1 Halleck's Int. Law (Baker's 3d ed.), 69. As to the Protectorate over the Mosquito Territory, see Cobbett's Int. Law Cases (2d ed.), 353. As to the French Protectorate over Madagascar, see 10 Law Quarterly Rev. 264; 29 Am. L. Rev. 546. As to the Hawaian islands, see 18 Law Mag. and Rev. (4th Series), 148; 19 id. 172, 313. As to intervention, see 20 id. 239; 2S Revue de Droit Int. 415.
Every nation has an undoubted right to provide for its own safety, and to take due precaution against distant as well as impending danger. The right of self-preservation is paramount to all other considerations, (b) A rational fear of an imminent danger is said to be a justifiable cause of war. Posse vicinum impediri, ne in suo solo, sine alia causa suaque evidenti utilitate, munimentum nobis propinquum extruat, aut aliud quid faciat, unde justa formido periculi oriatur. (c) The danger must be great, distinct, and imminent, and not rest on vague and uncertain suspicion. The British government officially declared to the allied powers in 1821, (d) that no government was more prepared than their own "to uphold the right of any state or states to interfere, where their own security or essential interests were seriously endangered by the internal transactions of another state; that the assumption of the right was only to be justified by the strongest necessity, and to be limited and regulated thereby; that it could not receive a general and indiscriminate application to all revolutionary movements, without reference to their immediate bearing upon some particular state or states;
protect the peace of Europe "against those disastrous attempts which would spread the horror of universal anarchy over the civilized world;" "against a fanaticism for innovation, which would soon have rendered the existence of any public order whatever problematical." "That they were far from wishing to prolong this interference beyond the limits of strict necessity, and would ever prescribe to themselves the preservation of the independence and of the rights of each state." Circular Despatch and Declaration of the Sovereigns of Austria, Russia, and Prussia, Laybach, May, 1821; Annual Register for 1821, p. 599. The quadruple alliance in 1834, between France, Spain, Great Britain, and Portugal, was made for the purpose of putting an end to a war in regard to the succession to the crown of Portugal. waged between the Emperor Don Pedro, contending for the rights of the Queen of Portugal, Donna Maria II., and the Infante Dom Miguel, who had usurped the throne, and also for the purpose of expelling from the Peninsula the Infante Don Carlos, who disputed with Queen Isabella II. the succession to the crown of Spain, and is another instance of interference with the internal concerns of nations. The object of the interference and quadruple alliance was effected by the expulsion of the two Infantes. So far, the armed interference in this case went on the momentous questions of dynasty and succession, and on the pretence of putting an end to a destructive and interminable civil war.
(b) Vattel, b. 2, c. 4, sec. 49, 50; Kluber, Droit des Gens, c. 1, p. 75; Grotius, b. 2, c. 1.
(c) Huber de Jure Civitatis, lib. 3, c. 7, sec. 4.
(d) Lord Castlereagh's Circular Despatch of January 19, 1821, and of May, 1823. Annual Register, lxv. Public Documents. See also Mr. Secretary Canning's Communications in January and March, 1823. Annual Register, lxvi. Public Documents.
that its exercise was an exception to general principles of the greatest value and importance, and as one that only properly grows out of the circumstances of the special case, — and exceptions of this description could never, without the utmost danger, be so far reduced to rule as to be incorporated into the ordinary diplomacy of states, or into the institutes of the law of nations." {24} The limitation to the right of interference with the internal concerns of other states was defined in this instance with uncommon precision; and no form of civil government which a nation may think proper to prescribe for itself can be admitted to create a case of necessity justifying an interference by force; for a nation under any form of civil policy which it may choose to adopt is competent to preserve its faith, and to maintain the relations of peace and amity with other powers.
It is sometimes a very grave question when and how far one nation has a right to assist the subjects of another, who have revolted, and implored that assistance. It is said (a) that assistance may be afforded, consistently with the law of nations, in extreme cases, as when rulers have violated the principles of the social compact, and given just cause to their subjects to consider themselves discharged from their allegiance. Vattel mentions the case of the Prince of Orange as a justifiable interference, because the tyranny of James II. had compelled the English nation to rise in their defence, and call for his assistance. The right of interposition must depend upon the special circumstances of the case. It is not susceptible of precise limitations, and is extremely delicate in the application. It must be submitted to the guidance of eminent discretion, and controlled by the principles of justice and sound policy. It would clearly be a violation
(a) Vattel, b. 2, c. 4, sec. 56; Rutherforth, b. 2, c. 9. See also Grotius, lib. 2, c. 25, sec. 8; Puff. b. 8, c. 6, sec. 14. The American Secretary of State (Mr. Webster), in his letter to Lord Ashburton, of April 21, 1841, declared, that it was "a manifest and gross impropriety for individuals to engage in the civil conflicts of other states, and thus to be at war, while their government is at peace;" and that "the salutary doctrine of non-intervention by one nation with the affairs of others is liable to be essentially impaired, if, while the government refrains from interference, interference is still allowed to its subjects, individually or in masses;" and that "the United States have been the first among civilized nations to enforce the observance of the just rule of neutrality and peace, by special and adequate legal enactments against allowing individuals to make war on their own authority, or to mingle themselves in the belligerent operations of other nations."
of the law of nations to invite subjects to revolt who were under actual obedience, however just their complaints; or to endeavor to produce discontents, violence, and rebellion in neighboring states, and, under color of a generous assistance, to consummate projects of ambition and dominion. The most unexceptionable precedents are those in which the interference did not take place until the new states had actually been established, and sufficient means and spirit had been displayed to excite a confidence {25} in their stability, (a)1 The assistance that England gave to the United Netherlands when they were struggling against Spain, and the assistance that Prance
(a) The Comm. Pinheiro-Ferreira, in his Cours de Droit Public, ii. 6, 7, very decidedly justifies the recognition, when the revolted people have acquired such stability.
1 See, as to intervention, the elaborate discussion in Lawrence's Commentaire etc. de H. Wheaton, t. 2, pt. 2, c. 1, III. et seq.; [Hall, Int. Law, pt. 2, c. 7;] Halleck, Int. Law, c. 3, § 20: Martens, Nouvelles Causes Célèbres, i. 370 et seq. Historicus, in his Letters on International Law, says that it is a question of policy quite outside the law. "Its essence is illegality, and its justification is success." p. 41. [See, however, Hall, Int. Law, supra.] See Halleck, Int. Law, c. 4, §§ 4-10.
Recognition of the independence of a revolted state 13 only lawful when such independence is de facto established. Historicus, I. p. 9; infra, n. (e); [Amos, Lect. on Int. Law, 44, 45. ] But the struggle needs not to have been formally abandoned. Wheat. pt. 1, c. 2, Dana's note 16; Halleck, c. 3, §§ 21, 22; Hansard (cited Abdy, 100), clxv. 31; clxxi. 1171; clxxii. 661. The doctrine is incidentally explained in Austin's sixth lecture on jurisprudence, 3d ed. 235 et seq.
As to recognition of belligerency, Wheat, pt. 1, c. 2, Dana's note 15, and auth. cit.; Hansard (cited Abdy, 106), clxii. 1566.
The principle of the cases at the end of note (e), infra, is followed in Kenneth v. Chambers, 14 How. 38; Jones v. Garcia del Rio, Turn. & Buss. 297.
[Hall, Int. Law, 28, says, that recognition of belligerency should be granted only when it is necessary as a matter of self-protection to the granting state.
The concession of belligerent rights by the United States to the Confederate States did not give them the status of an independent nation, (x) and did not give them — the rebellion having proved unsuccessful — the right to confiscate debts due to loyal citizens of the United States. Williams v. Bruffy, 96 U. S. 176. See generally, as to the relations between the United States and the states in rebellion, Ford v. Surget, 97 U. S. 594; Coleman v. Tennessee, ib. 509. — B.]
(x) In the language of Mr. Justice Matthews in Poindexter v. Greenhow, 114 U. S. 270, 290, the civil war of 1861 "was not a war between the States, nor a war of the United States against States, but a
war of the United States against unlawful and usurping governments, representing not the States, but a rebellion against the United States." See Johnson v. Atlantic, &c., Co., 156 U. S. 618.
gave to this country during the war of our Revolution, were justifiable acts, founded in wisdom and policy. And equally justifiable was the interference of the European powers of France, Great Britain, and Russia, in favor of the Greeks, against the Ottoman Porte, by the treaty for the pacification of Greece, concluded by those three Christian powers in 1827, and by means of which a ferocious and destructive war was terminated by the independence of the Greek state as a new kingdom, and a recognition of that independence by the Ottoman Porte, in 1832. So, also, there was a successful interference, in 1840, of four of the great European powers, Austria, Great Britain, Prussia, and Russia, in the civil war between the Ottoman Porte and Mehemet Ali, the Pacha of Egypt. These, as well as other acts and pacifications, have effectually placed Turkey within the pale of the public law of Europe. And, lastly, there was a memorable interference of the five great European powers in the Belgic revolution of 1830, which ended in the separation of Belgium from Holland, and the establishment of the former as an independent state. The several cases have given recent and practical illustration of the principle of international law, in its application to the preservation of the public peace and security of nations, against internal as well as external violence and oppression. It has been well observed (b) that non-interference is the general rule, and cases of justifiable interference form exceptions limited by the necessity of the case. It was stated, on the part of the British ministry, in Parliament, by Lord Palmerston, in 1847, as a rule laid down by writers on the law of nations, that when civil war is regularly established in a country, and when the nation is divided into conflicting armies and opposing camps, the two parties in such war may be dealt with by other powers as if they were separate communities, and that such other powers may take part with one side or the other, according to their sympathies and interests, just as they might in a war between separate and independent nations. Such interference, however justifiable and safe, will be rare, and requires the exercise of eminent discretion. It is not to be doubted that the government of the United States had a perfect right, in the year 1822, to consider, as it then did, the Spanish Provinces in South America as legitimate powers, which had attained sufficient solidity and strength to be en-
(b) Wheaton's Elements, p. 120.
titled to the rights and privileges belonging to independent states, (c)
Prior to the recognition of the independence of any of the Spanish colonies in America, and during the existence of the civil war between Spain and her colonies, it was the declared policy of the government of the United States, in recognizing the independence of the Spanish American republics, to remain neutral, and to allow to each of the belligerent parties the same rights of asylum and hospitality, and to consider them, in respect to the neutral relation and duties of the United States, as equally entitled to the sovereign rights of war as against each other, (d) This was also the judicial doctrine of the Supreme Court, derived from the policy of the government, and seems to have been regarded as a principle of international law. (e)
Nations are at liberty to use their own resources in such manner, and to apply them to such purposes as they may deem best, provided they do not violate the perfect rights of other nations, nor endanger their safety, nor infringe the indispensable duties of humanity. They may contract alliances with particular nations, and grant or withhold particular privileges, in their discre-
(c) President's Message to Congress of 8th of March, 1822, and act of Congress of 4th of May, 1822, c. 52.
(d) President's Message to Congress in 1822.
(e) United States v. Palmer, 3 Wheaton, 610, 634; The Santissima Trinidad, 7 Wheaton, 283, 337. See also Walley v. Schooner Liberty, 12 Louisiana, 98. "The uniform policy and practice of the United States, as declared by President Jackson, in his Message to Congress of the 21st December, 1836, is to avoid all interference in disputes which merely relate to the internal government of other nations, and eventually to recognize the authority of the prevailing party, without reference to the merits of the original controversy. All questions relative to the government of foreign nations, whether of the old or new world, have been treated by the United States as questions of fact only, and they have cautiously abstained from deciding upon them, until the clearest evidence was in their possession to enable them to decide correctly." It was further observed, by the American Secretary of State (Mr. Forsyth), in 1837, in his answer to the Texan Envoy, that in determining with respect to the independence of other countries, the United States have never taken the question of right be tween the contending parties into consideration. They have deemed it a dictate of duty and policy to decide upon the question as one of fact merely. It belongs to the legislative or executive power according to the character of the government) to recognize the independence of a people in revolt from their foreign sovereign; and until such acknowledgment be made, courts of justice are bound to consider the ancient state of things as remaining unaltered. City of Berne v. Bank of England, 9 Vesey, 347; The Manilla, 1 Edw. Adm. 1; Yrisarri v. Clement, 3 Bing. 432; Thompson v. Powles, 2 Sim. 194; Taylor v. Barclay, ib. 213; Rose v. Himely, 4 Cranch, 241; Hoyt v. Gelston, 13 Johns. 139, 141; United States v. Palmer, 3 Wheaton, 610.
tion. By positive engagements of this kind, a new class of rights and duties is created, which forms the conventional law of nations, and constitutes the most diffusive, and, generally, the most important, branch of public jurisprudence. And it is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states, are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers or with creditors weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government, (x) The body
(x) By right of military occupation, the conqueror may enforce the collection of debts actually due to the displaced government against debtors in the territory either of the conquered or conquering government. But the conqueror cannot so enforce payment in a neutral State. 2 Halleck's Int. Law (Baker's 3d ed.), p. 461; see infra, p. 74, note (x). If a revolutionary or de facto government is overthrown by the previously existing government, the latter is entitled to all public property belonging to the government at the time of the outbreak. United States v. McRae, L. R. 8 Eq. 69. But after the recognition of the revolutionary government by a foreign State, the restored government cannot repudiate contracts made by it with a subject of such foreign State, but in litigation thereon merely takes the rights of the recognized government. Republic of Peru v. Dreyfus, 38 Ch. D. 348. See Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489; Republic of Chili v. London & River Plate Bank, 10 Times L. R. 658. Probably also if there has been no international recognition, property acquired under such contracts cannot be recovered abroad in violation of such contracts. Ibid.; The Beatrice, 36 L. J. Adm. 9. See infra, p. 297, notes.
Although the non-political laws of a conquered or ceded country continue in force until changed by the new govern-
ment, yet the right to alienate the public domain can only be exercised by its authority. More v. Steinbach, 127 U. S. 70. A government which exercises political jurisdiction de facto over territory which does not rightfully belong to it, cannot make a valid grant thereof as against the government to which it rightfully belongs. Coffee v. Groover, 123 U. S. 1. Private titles to land are not affected by conquest or cession of territory. United States v. Moreno, 1 Wall. 400. Individual rights acquired by foreigners under a former government are, it seems, to be respected even in case of conquest by another government. 1 Wharton's Digest, 16.
The overthrow of a government by revolution and the dissolution of its army do not affect the question whether an offence is within the jurisdiction of the military tribunals. In re Ezeta, 62 Fed. Rep. 972. The occupation of a department of France by German troops after their victory in 1871, did not suspend or affect the civil, criminal or customs laws of France, and gave to Germany only the use and the revenues of the public domain. See Dalloz, 1872, II., 185, and notes, 229.
Questions as to the boundaries of nations as well as what foreign government exists, are political rather than judicial in their nature. Republic of Peru v. Dreyfus, 38 Ch. D. 348; In re Cooper, 143 U. S. 472. When a nation's citizens take possession
politic is still the same, though it may have a different organ of communication. (f) So, if a state should be divided in respect to territory, its rights and obligations are not impaired; and if they have {26} not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common, (a)
2. Jurisdiction over Adjoining Seas. — The extent of jurisdiction over the adjoining seas is often a question of difficulty and of dubious right. As far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. Navigable rivers which flow through a territory and the sea-coast adjoining it, and the navigable waters included in bays and between headlands and arms of the sea, belong to the sovereign of the adjoining territory, as being necessary to the safety of the nation and to the undisturbed use of the neighboring shores, (b) (x) The open sea is not capable of being
(f) Grotius de Jure, lib. 2, c. 9, sec. 8; Puff. Droit de la Nature et des Gens, par Barbeyrac, ii. liv. 8, c. 12, sec. 2, 3; Burlamaqui, Nat. and Pol. Law, ii. pt. 4, c. 9, sec. 16; Rutherforth's Institutes, b. 2, c. 10; Vattel, b. 2, sec. 85; Protocol of the five great powers of Austria, Great Britain, France, Prussia, and Russia, by their plenipotentiaries at London, December, 1830, stated in Wheaton's History of the Law of Nations, New York, 1845, pp. 538-546.
(a) Rutherforth, b. 2, c. 10; [Halleck, c. 3, §§ 27, 28.]
(b) Grotius, b. 2, c. 2, sec. 12; c. 3, sec. 7; Puff. b. 3, c. 3, sec. 4; b. 4, c. 5, sec. 3 and 8; Vattel, b. 1, c. 22, 23.
of new territory, like a guano island, in its name and by its authority, or with its assent, it may exercise such authority and for such time as it deems best, over such territory. Territorial sovereignty is a political, not a judicial question, and the courts take judicial notice of the extent of territory claimed by their government, as shown by its public acts. Jones v. United States, 137 U. S. 202.
When annexation or colonization is effected through commercial companies, as was done by England in India, and as is now being done in Africa, the chartered company is treated by the English courts as the delegate of the British government so far as regards acts of State, but not as to commercial contracts. See 10 Law Quarterly Rev. 263.
(x) The question whether arms of the sea are a part of the sea or belong to the nation's territory is not determined by the width of the enclosed waters or by measuring three miles from each enclosing headland to the other, but by their dimensions and configuration in relation to the coast and adjacent territory. Thus the Mediterranean Sea could not properly be
treated as a mare clausum. So the Gulf of Mexico is a part of the Atlantic Ocean. Baker v. Merchants' Mut. Ins. Co., 4 Woods, 255; 16 Fed. Rep. 915; Merchants' Ins. Co. v. Allen, 121 U. S. 67. On the other hand, bays having an entrance of ten miles in width, and somewhat greater, have been frequently treated as closed waters. Thus, Bristol Channel,
possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated. The subjects of all nations meet there, in time of peace, on a footing of entire equality and independence. No nation has any right or jurisdiction at sea, except it be over the persons of its own subjects, in its own public and private vessels; and so far territorial jurisdiction may be considered or preserved, for the vessels of a nation are, in many respects, considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs. They may be punished for offences against the municipal laws of the state, committed on board of its public and private vessels at sea, and on board of its public vessels in foreign ports. (c) This jurisdiction is confined to the ship; and no one ship has a right to prohibit the approach of another at sea, or to draw round her a line of territorial jurisdiction, within which no other is at
(c) Grotius, b. 2, c. 3, sec. 10 and 13; Rutherforth, b. 2, c. 9; Vattel, b. 1, c. 19, sec. 216; Forbes v. Cochrane, 2 Barn. & Cress. 448; Wheaton's Elements of International Law, 3d ed. 157; Edinburgh Review for July, 1841, pp. 294, 295.
where it is more than ten miles wide, is claimed as part of the territory of England and of its county of Glamorgan. Regina v. Cunningham, Bell C. C. 86; see 31 & 32 Vict. c. 45; Manning's Law of Nations, 120; 1 Phillimore, Int. Law, § 200; Manchester v. Massachusetts, 139 U. S. 240; 152 Mass. 230.
So Chesapeake Bay and Delaware Bay are not high seas. Stetson v. United States, 32 Albany L. J. 484; 1 Wharton's Int. Law, § 28; The Grange, 1 A, G. Op. 32. And Narragansett Bay is claimed to be, by usage, within the jurisdiction of the Rhode Island courts. Chase v. American Steamboat Co. 9 R. I. 419; 16 Wall. 522.
So of Conception Bay, in Newfoundland, which has been declared British territory by act of Parliament, although it is more than twenty miles wide at its mouth, and nearly fifty miles long. Direct U. S. Cable Co. v. Anglo-American Tel. Co., 2 App. Cas. 394. So such bodies
of water as the Zuyder Zee and Hudson Bay, being wholly surrounded by the territory of a single nation and approached by narrow entrances, may, it seems, be claimed as subject to the territorial right; while such arms of the sea as the Bay of Fundy and the Bay of Chaleur, having open entrances, remain public, except as to enclosed waters formed within them by the indentations of the coast. See Hall's Int. Law 2d ed., p. 141; 3 Wharton's Int. Law, §§ 28, 304, 305 a.
By the Convention of 1818, the United States, making certain exceptions, forever renounced the right of taking, drying, or curing fish "within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America." Upon this clause, as considered before the Canadian Fisheries Commission, see their published Proceedings: also 21 Am. L. Rev. 369, 395, 431; 22 Revue de Droit Int. 222.
liberty to intrude. Every vessel, in time of peace, has a right to consult its own safety and convenience, {27} and to pursue its own course and business, without being disturbed, when it does not violate the rights of others, (a) As to narrow seas and waters approaching the land, there have been many and sharp controversies among the European nations concerning the claim for exclusive dominion. The questions arising on this claim are not very clearly defined and settled, and extravagant pretensions are occasionally put forward. The subject abounds in curious and interesting discussions, and, fortunately for the peace of mankind, they are, at the present day, matters rather of speculative curiosity than of use.
Grotius published his Mare Liberum against the Portuguese claim to an exclusive trade to the Indies, through the South Atlantic and Indian Oceans, and he shows that the sea was not capable of private dominion. He vindicates the free navigation of the ocean and the right of commerce between nations, and justly exposes the folly and absurdity of the Portuguese claim. Selden's Mare Clausum was intended to be an answer to the doctrine of Grotius, and he undertook to prove, by the laws, usages, and opinions of all nations, ancient and modern, that the sea was, in point of fact, capable of private dominion; and he poured a flood of learning over the subject. He fell far short of his great rival in the force and beauty of his argument, but he entirely surpassed him in the extent and variety of his citations and researches. Having established the fact that most nations had conceded that the sea was capable of private dominion, he showed, by numerous documents and records, that the English nation had always asserted and enjoyed a supremacy over the surrounding or narrow seas, and that this claim had been recognized by all the neighboring nations. Sir Matthew Hale considered the title of the king to the narrow seas adjoining the coast of England to have been abundantly proved by the treatise of Selden; and Butler speaks of it {28} as a work of profound erudition. (a) Bynkershoek has also written a treatise on the same contested subject, in which he concedes to Selden much of his argument, and admits that the sea was susceptible of dominion, though he denies the title of
(a) The Marianna Flora, 11 Wheaton, 38.
(a) Harg. Law Tracts, 10; Co. Litt. iii. n. 205.
the English, on the ground of a want of uninterrupted possession. He said there was no instance, at that time, in which the sea was subject to any particular sovereign, where the surrounding territory did not belong to him. (b)
The claim of dominion to close or narrow seas is still the theme of discussion and controversy. Puffendorf (c) admits that, in a narrow sea, the dominion of it, and the right of fishing therein, may belong to the sovereigns of the adjoining shores. Vattel also (d) lays down the position, that the various uses to which the sea contiguous to the coast may be applied render it justly the subject of property. People fish there, and draw from it shells, pearls, amber, &c.; and who can doubt, he observes, but that the pearl fisheries of Bahram and Ceylon may be lawfully enjoyed as property? Chitty, in his work on commercial law, (e) has entered into an elaborate vindication of the British title to the four seas surrounding the British Islands, and known by the name of the British Seas, and, consequently, to the exclusive right of fishing and of controlling the navigation of foreigners therein. On the other hand, Sir William Scott, in the case of the Twee Gebroeders, (f) did not treat the claim of territory to contiguous portions of the sea with much indulgence. He said the general inclination of the law was against it; for in the sea, out of the reach of cannon-shot, universal use was presumed, in like manner as a common use in rivers flowing through conterminous states was presumed; and yet, in both cases, {29} there might, by legal possibility, exist a peculiar property, excluding the universal or the common use. The claim of Russia to sovereignty over the Pacific Ocean north of the 51st degree of latitude as a close sea was considered by our government in 1822 to be against the rights of other nations. (a) It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond those portions of the sea which are embraced by harbors, gulfs, bays, and estuaries, and
(b) Dissertatio de Dominio Maris; Bynk. Opera, ii. 124.
(c) Droit de la Nat. et des Gens, liv. 4, c. 5, sec. 5-10.
(d) B. 1, c. 23. (c) Vol. i. 88-102.
(f) 3 Rob. Adm. 336.
(a) Mr. Adams's Letter to the Russian Minister, March 30, 1822.
over which its jurisdiction unquestionably extends. (b) All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. (x) A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league; and the Congress of the United States have recognized this limitation, by authorizing the district courts to take cognizance of all captures made within a marine league of the American shores. (c) The executive authority of this country, in 1793, considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claims upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed. It was intimated that the law of nations would justify
(b) Azuni on the Maritime Law of Europe, vol. i. p. 206.
(c) Bynk. Q. Pub. J. c. 8; Vattel, b. 1, c. 23, sec. 289; Act of Congress, June 5, 1794, c. 50; The King v. Forty-nine Casks of Brandy, 3 Hagg. Adm. 257. By the convention at London of the 13th July, 1841, between Great Britain, France, Austria, Prussia, and Russia, and the Ottoman Porte, it was declared and agreed to be an established principle of public law, that no ships of war of foreign powers should enter into the Straits of the Dardanelles and of the Bosphorus, thereby placing the territorial jurisdiction of the Sultan over the interior waters of his empire under the protection of the written public law of Europe. Wheaton's History of the Law of Nations, New York, 1845, p. 584.
(x) The distance of a marine league is said to have been fixed at a time when no gun could force a ball farther. Hogg v. Beerman, 41 Ohio St. 81, 95. See 2 Stephens' History of the Criminal Law, 29 et seq.; Walker's Science of Int. Law, 173; Maine's Int. Law, 38. For self-protection in time of war, for the prevention of frauds upon its revenue, etc., a nation may exercise authority beyond this limit. Manchester v. Massachusetts, 139 U. S. 240; S. C. nom. Commonwealth v. Manchester, 152 Mass. 230; The Hungaria, 41 Fed. Rep. 109; 26 Revue de Droit Int. 209. The act of Parliament of 1816 (56 Geo. III. c.23), § 4, prohibited, under
penalty of forfeiture, during Napoleon's detention at St. Helena, domestic and foreign vessels from loitering or hovering within eight leagues of that island, though placing no impediment in the way of vessels pursuing a direct and lawful voyage in such waters.
According to some writers a nation may extend its jurisdiction seaward as the range of its cannon increases. Hall, Int. Law, 127; 1 Fiore, Int. Law, 373; Bluntschli, § 303. It is important that the rule should be certain and the same for all civilized nations though all may not in time of peace be supplied with the newest weapons.
the United States in attaching to their coasts an extent into the
sea beyond the reach of cannon-shot. (d)
{30} Considering the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume, for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the
south cape of Florida to the Mississippi. (x) It is certain that our
(d) Opinion of the Attorney-General concerning the seizure of the ship Grange, dated 14th of May, 1793, and the Letter of the Secretary of State to the French Minister, of 15th of May, 1793.
(x) As suggested by Captain Mahan in his "Influence of Sea Power upon History" (p. 33), these questions may become of practical importance, especially in the South, should the construction of a Central-American canal convert the Caribbean Sea into a great highway for the commerce of the world. It cannot as yet be said that the United States has an exclusive right in these large, open areas by prescription, the consensus of civilized nations, or by authority. In England, the decision in Regina v. Keyn, 2 Ex. D. 63, limits the territory of England and its criminal jurisdiction to low-water mark on the external coast, in the absence of express legislation. See also Harris v. The Franconia, 2 C. P. D. 173; Direct U. S. Cable Co. v. Anglo-American Tel. Co., 2 App. Cas. 394. In this country, State legislation extending the territorial limits of the State three miles seaward from the shore is valid. Dunham v. Lamphere, 3 Gray, 268; Manchester v. Massachusetts, 139 U. S. 240; 152 Mass. 230; United States v. Smiley, 6 Sawyer, 640; State v. Murray, 84 Maine, 135. So under the California Constitution, Art. 21, § 1, and its Political Code, § 33, extending the State line westwards three
miles from the shore, a State statute, which makes death by another's wrongful act a cause of action, applies to a cause of action arising on the high seas within such limit from the shore. In re Humboldt Lumber Man'rs' Association, 60 Fed. Rep. 428.
The result of the Behring Sea arbitration was that the United States could not protect seals in the ocean beyond three miles from the shore. See Award, Point V.; 37 Cent. L. J. 249; 18 Law Mag. & Rev. (4th Series), 231, 318, 703; 19 id. 21; 6 Jurid. Rev. 21; 27 Chic. L. News, 156; 27 Am. L. Rev. 684; 29 Am. L. Reg. 625. If the United States through the President and Congress see fit to assume jurisdiction and sovereignty over such waters as the Behring Sea beyond the three-mile limit, the courts and the people are bound by such action. United States v. The James G. Swan, 50 Fed. Rep. 108. In Reg. v. Keyn, 2 Ex. D. 152, Lord Coleridge said: "It is freely admitted to be within the competency of Parliament to extend the realm how far soever it may please." See also United States v. Kessler, Baldw. 34. See the articles in 7 Law Mag. & Rev. (4th Series) 353; 8 id. 259; 15 Irish L. T. 626, dis-
government would be disposed to view with some uneasiness and sensibility, in the case of war between other maritime powers, the
cussing the question whether it is competent for French citizens to build a submarine railway to England by purchasing a portion of the foreshore at Dover owned by private individuals, the disability of aliens to hold land in England having been abolished by the Naturalization Act of 1870. The decision in Reg. v. Keyn is binding upon all the English courts. Harris v. The Franconia, 2 C. P. D. 173. After that decision, The Territorial Waters Jurisdiction Act of 1878 (41 & 42 Vic. c. 73) extended the jurisdiction seaward to one marine league from low-water mark, "for the purpose of any offence declared by this act to be within the jurisdiction of the admiral." This statute has been criticised as contrary to International Law. See e. g. Perels' Das internationale öffentliche Seerecht der Gegenwart, § 13.
The government's title to the soil of arms of the sea is often said to be a proprietary right, and not a mere trust for public uses, as in Lord Advocate 11. Clyde Nav. Trustees, 19 Ct. of Ses. (4th Series), 174.
In this country the States bordering upon the Great Lakes hold the title to the lands under these navigable waters and their inlets in the same manner that the States upon the sea-coast hold title to the soil under tide water by the common law. "That title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. The
interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks, and piers therein, for which purpose the State may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants.... The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which it has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled." Field, J., in Illinois Central R. Co. v. Illinois, 146 U. S. 387, 452.
Titles to submerged lands in the Territories, derived from the general government, were settled by the important case of Shively v. Bowlby, 152 U. S. 1, deciding that the United States, upon acquiring a Territory, by cession from a State, or by treaty with a foreign country, or by discovery and settlement, take the title and dominion of its tide lands below high-water mark for the benefit of the whole people and in trust for the future State, and, while so holding them, have all the powers both of national and municipal government, and may grant titles thereto for appropriate purposes.
use of the waters of our coasts, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes. In 1793, our government thought they were entitled, in reason, to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea-shores; (a) and, in 1806, our government thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare, for the space between that limit and the American shore. It ought, at least, to be insisted that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within "the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another." (b) In {31} the case of the Little Belt, which was cruising many miles from the shore between Cape Henry and Cape Hatteras, our government laid stress on the circumstance that she was "hovering on our coasts;" and it was contended on the part of the United States that they had a right to know the national character of armed ships in such a situation, and that it was a right immediately connected with our tranquillity and peace. It was further observed, that all nations exercise the right, and none with more rigor or at a greater distance from the coast than Great Britain, and none on more justifiable ground than the United States. (a) There can be but little doubt that, as the United States advance in commerce and naval strength, our government will be disposed more and more to feel and acknowledge the justice and policy of the British claim to supremacy over the narrow seas adjacent to the British isles, because we shall stand in need of similar accommodation and means of security. (b)
(a) Mr. Jefferson's Letter to M. Genet, November 8, 1793.
(b) Mr. Madison's Letter to Messrs. Monroe and Pinckney, dated May 17, 1806.
(a) Mr. Monroe's Letter to Mr. Foster, October 11, 1811, and President's Message, November 5, 1811.
(b) In placing the commerce and navigation of states, by treaties of commerce, on the basis of equality, it is sometimes deemed advisable to except in express terms the coasting trade or coastwise navigation, of the respective parties, and to reserve the regulation of that trade to the separate laws of each nation. See the convention of
It was declared in the case of Le Louis, (c) that maritime states claim, upon a principle just in itself and temperately applied, a right of visitation and inquiry within those parts of the ocean adjoining to their shores. They were to be considered as parts of the territory for various domestic purposes, and the right was admitted by the courtesy of nations. The English hovering laws were founded upon that right. The statute 9 Geo. II. c. 35, prohibited foreign goods to be transshipped within four leagues of the coast without payment of duties; and the act of Congress of March 2, 1799, c. 128, sec. 25, 26, 27, 99, contained the same prohibition; and the exercise of jurisdiction, to that distance, for the safety and protection of the revenue laws, was declared by the Supreme Court, in Church v. Hubbart, (d) to be conformable to the laws and usages of nations.1
3. Rights of Commerce. — As the end of the law of nations is the happiness and perfection {32} of the general society
commerce and navigation between the United States and the Peru-Bolivian Confederation, May 28, 1838, and between them and the Kingdom of Greece, August, 1838, and between them and Portugal, April, 1841, and between them and the Republic of Ecuador, June 13, 1839.
(c) 2 Dod. Adm. 245. (d) 2 Cranch, 187.
1 But see Wheat. pt. 2, c. 4, Dana's note 108; Twiss, pt. 1, § 181. [Regina v. Keyn, 2 Ex. Div. 63, was an indictment for manslaughter. Defendant was a foreigner, commanding a foreign ship, and while sailing within three miles of the English coast, so negligently and unskilfully sailed his vessel that a collision resulted with an English ship, and by the collision a passenger on board the latter vessel was killed. Defendant was convicted in the Central Criminal Court, and the case came on appeal to the Criminal Court of Appeal, the question being whether the lower court had jurisdiction of the case. It was held by seven judges to six that the court did not have jurisdiction. It was generally admitted that whatever jurisdiction a nation has over the open sea adjacent to its coasts, extends to three miles, or, at most, to the range of cannon-shot from the shore. The ma-
jority of the court held, however, that, in the absence of statute, the jurisdiction over these waters was only to the extent necessary for the defence and security of the state, that the ordinary criminal jurisdiction did not extend over them, and hence that the law of the flag was the law to govern the case, and that the country of the flag had jurisdiction. Two judges held that even an act of Parliament could not give such jurisdiction. The minority were of opinion that the sea to the extent of three miles was a part of the territory of England, and subject to her criminal jurisdiction, and that at most the country of the flag had jurisdiction only in case of crimes committed wholly on hoard the foreign ship. See also Bar, Int. Law, 659, note (EE). The Brigg Ann, 1 Gall. 62; United States v. New Bedford Bridge Co., 1 W. & M. 401, 487. — B.]
of mankind, it enjoins upon every nation the punctual observance of benevolence and good-will as well as of justice, towards its neighbors. (a) This is equally the policy and the duty of nations. They ought to cultivate a free intercourse for commercial purposes, in order to supply each other's wants and promote each other's prosperity. The variety of climates and productions on the surface of the globe, and the facility of communication, by means of rivers, lakes, and the ocean, invite to a liberal commerce, as agreeable to the law of nature, and extremely conducive to national amity, industry, and happiness. (b) The numerous wants of civilized life can only be supplied by mutual exchange between nations of the peculiar productions of each; and who that is familiar with the English classics has not dwelt with delight on the description of the extent and blessings of English commerce, which Addison has given with such graceful simplicity and such enchanting elegance in one of the Spectator's visits to the Royal Exchange? (c) But as every nation has the right, and is disposed to exercise it, of judging for itself in respect to the policy and extent of its commercial arrangements, the general freedom of trade, however reasonably and strongly it may be inculcated in the modern school of political economy, is but an imperfect right, and necessarily subject to such regulations and restrictions as each nation may think proper to prescribe for itself. Every state may monopolize as much as it pleases of its own internal and colonial trade, or grant to other nations, with whom it deals, such distinctions and particular privileges as it may deem conducive to its interests. (d) The celebrated English {33} navigation act of Charles II. contained nothing, said Martens, contrary to the law of nations, notwithstanding it was very embarrassing to other countries. When the United States put an entire stop to their commerce with the world, in December, 1807, by laying a general embargo on their trade, without distinction
(a) Vattel's Prelim. sec. 12, 13, b. 2, c. 1, sec. 2, 3.
(b) Vattel, b. 2, c. 2, sec. 21.
(c) Spectator, i. No. 69.
(d) Puff. b. 4, c. 5, sec. 10; Vattel, b. 1, c. 8, sec. 92, 97; Martens, Law of Nations, 146, 148; 1 Chitty on Commercial Law, 76-81; Mr. Canning's Letters to Mr. Gallatin, of September 11 and November 13, 1826; Mr. Gallatin to Mr. Canning, September 22 and December 28, 1826, and Mr. Clay to Mr. Gallatin, November 11, 1826.
as to nation, or limit as to time, no other power complained of it; and the foreign government most affected by it, and against whose interests it was more immediately directed, declared to our government, (a) that, as a municipal regulation, foreign states had no concern with it, and that the British government did not conceive that they had the right, or the pretension, to make any complaint of it, and that they had made none.
No nation has a right, in time of peace, to interfere with, or interrupt, any commerce which is lawful by the law of nations, and carried on between other independent powers, or between different members of the same state. The claim of the Portuguese, in the height of their maritime power in India, to exclude all European people from commerce with Asia, was contrary to national law, and a just cause of war. Vattel called it a pretension no less iniquitous than chimerical. (b) The attempt of Russia to appropriate to herself an exclusive trade in the North Pacific met with a prompt resistance on the part of this country; and the government of the United States claimed for its citizens the right to carry on trade with the aboriginal natives, on the northwest coast of America, without the territorial jurisdiction of other nations, even in arms and munitions of war. (c)
Treaties of commerce, defining and establishing the rights and extent of commercial intercourse, have been found to be of great utility; and they occupy a very important title in the code of national law. They were considered, {34} even two centuries ago, to be so conducive to the public welfare as to overcome the bigotry of the times; and Lord Coke (a) admitted them to be one of the four kinds of national compacts that might lawfully be made with infidels. They have multiplied exceedingly within the last century, for it has been found by experience that the general liberty of trade, resting solely on principles of common right, benevolence, and sound policy, was too vague and precarious to be consistent with the safety of the extended intercourse and complicated interests of great commercial states. Every nation may enter into such commercial treaties, and grant
(a) Mr. Canning's Letter to Mr. Pinckney, September 23, 1808. (b) B. 2, c. 2, sec. 24.
(c) Mr. Adams's Letter to the Russian Minister, March 30, 1822. See also Mr. Forsyth's Letter to the American Minister at St. Petersburgh, November 3, 1837. (a) 4 Inst. 155.
such special privileges, as they think proper; and no nation to whom the like privileges are not conceded has a right to take offence, provided those treaties do not affect their perfect rights. A state may enter into a treaty, by which it grants exclusive privileges to one nation, and deprives itself of the liberty to grant similar privileges to any other. Thus, Portugal, in 1703, by her treaty with England, gave her the monopoly of her wine trade: and the Dutch, formerly, by a treaty with Ceylon, engrossed the cinnamon trade, and, latterly, they have monopolized the trade with Japan. (b)1 These are matters of strict legal right; but it is, nevertheless, in a moral sense, the duty of every nation to deal kindly, liberally, and impartially towards all mankind, and not to bind itself By treaty with one nation, in contravention of those general duties which the law of nature dictates to be due to the rest of the world. (c)
4. Right of Passage over Land. — Every nation is bound, in time of peace, to grant a passage for lawful purposes over their lands, rivers, and seas to the people of other states, whenever it can be permitted without inconvenience; and burdensome conditions ought not to be annexed to the transit of persons and property.
If, however, any government deems the introduction of {35} foreigners or their merchandise injurious to the interests of their own people, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject to the discretion of the government which tolerates it. (a)
(b) Chitty, Comm. Law, 40, 41, 42.
(c) It has been the policy of the United States to encourage, in its diplomatic intercourse with other nations, the most perfect freedom and equality in relation to the right and interests of navigation. This is the principle contained in the commercial treaty between the United States and the federation of Central America, of the 5th December, 1825. By that treaty, whatever can be imported into, or exported from, the ports of the one country, in its own vessels, may, in like manner, and upon the same terms and conditions, be imported or exported in the vessels of the other country. The same rule is contained in the treaties of the United States with Denmark, Sweden, and the Hanseatic cities.
(a) Puff. b. 3, sec. 5, 6, 7; Rutherforth, b. 2, c. 9; Vattel, b. 2, c. 7, sec. 94; c. 8, sec. 100; c. 9, sec. 123, 130; c. 10, sec. 132; 1 Chitty, 84-89; M. Pinheiro-Ferreira
1 This monopoly has been put an end to by treaties with various countries.
As to the history of the policy mentioned in note (c), infra, see Oldfield v. Mar-
riott, 10 How. 146. See further the treaties with Peru, 10 U. S. St. at L. 926; and with the Argentine Confederation, ib. 1005.
The state may even levy a tax or toll upon the persons and property of strangers in transitu, provided the same be a reasonable charge, by way of recompense for the expense which the accommodation creates. (b) These things are now generally settled in commercial treaties, by which it is usually stipulated that there shall be free navigation and commerce between the nations, and a free entry to persons and property, subject to the ordinary revenue and police laws of the country, and the special terms and conditions prescribed by treaty. (x)
5. Right of Navigable Rivers. — A nation possessing only the upper parts of a navigable river is entitled to descend to the sea without being embarrassed by useless and oppressive duties or regulations. It is doubtless a right of imperfect obligation, but one that cannot be justly withheld without good cause. When Spain, in the year 1792, owned the mouth and both banks of the lower Mississippi, and the United States the left bank of the upper portion of the same, it was strongly contended on the part of the
(Cours de Droit Public, ii. 19, 20) complains vehemently of the checks created by passports and the preventive police of the continental governments of Europe upon emigration and the transit and sojourn of foreigners. He calls it legal tyranny, and contrasts such policy with that of the United States, "the classic land of civil liberty." But I am of opinion, notwithstanding, that every government has the right, and is bound in duty, to judge for itself, how far the unlimited power of emigration, and of the admission and residence of strangers and emigrants, may be consistent with its own local interests, institutions, and safety.
(b) Rutherforth, b. 2, c. 9; Vattel, b. 2, c. 10, sec. 124; 1 Chitty, 103-106.
(x) Neutralization of territory, although not often recognized by ancient nations, has been at times illustrated in modern history, as in the case of Belgium in the Franco-German war, &c. See 13 Law Mag. & Rev. (4th Series), 1; 9 Id. 19, 117; 8 id. 123.
With respect to such artificial waterways as the Suez Canal, the proposed inter-oceanic canal at Panama or in Nicaragua, the Baltic Canal at Kiel, and the Corinth Canal in Greece, the Convention of Constantinople of 1888 excluded the Suez Canal from the operations of war, leaving intact the territorial right of the riparian Power; and, by the Bulwer-Clayton Treaty of 1850, Great Britain and the
United States guaranteed the neutrality of the proposed canal at Panama, exempting vessels from capture or blockade, and asserted the right of free passage therein. See 20 Revue de Droit International, 529; 27 id. 112, 223; 95 L. T. 426; 9 Law Mag. & Rev. (4th Series), 117; 18 Am. Law Rev. 79; 48 Albany L. J. 293; infra, p. 166; n. (x).
As to the isthmus of Panama, "the policy of this country is a canal under American control. The United States cannot consent to the surrender of this control to any European power, or to any combination of European powers." President Hayes's Message of Mar. 8, 1880. See 3 Wharton, Int. Law, ch. 12.
United States, that, by the law of nature and nations, we were entitled to the navigation of that river to the sea, subject only to such modifications as Spain might reasonably deem necessary for her safety and fiscal accommodation. It was further contended that the right to the end carried with it, as an incident, the right to the means requisite to attain the end; such, for instance, as the right {36} to moor vessels to the shore, and to land in cases of necessity. The same clear right of the United States to the free navigation of the Mississippi through the territories of Spain to the ocean was asserted by the Congress under the confederation. (a) The claim in that case, with the qualifications annexed to it, was well grounded on the principles and authorities of the law of nations. (b) The like claim, and founded on the same principles of natural law, and on the authority of jurists and the conventional law of nations, has been made on behalf of the people of the United States to navigate the St.
(a) Instructions given to Mr. Jay in 1780, and again in 1785; Resolution of Congress of September, 1788; Report of the Secretary of State to the President, March 18, 1792.
(b) Grotius, lib. 2, c. 2, sec. 11, 12, 13, 15; c. 3, sec. 12; Puff. lib. 3, c. 3, sec. 5, 6, 8; Vattel, b. 1, sec. 292; b. 2, sec. 127, 129, 132. By the treaty of peace at Paris, in 1815, it was stipulated that the navigation of the Rhine and the Scheldt should be free; and at the Congress of Vienna, in 1815, the allied sovereigns agreed to the free navigation of the great navigable rivers of Germany and ancient Poland, to their mouths, in favor of all who should conform to the regulations under which the affranchisement was to be granted. The detailed conventions consequent on the act of the Congress of Vienna have applied the principles adopted by the Congress, founded on the Memoir of Baron Von Humboldt, to regulate the navigation of the Rhine, the Scheldt, the Meuse, the Moselle, the Elbe, the Oder, the Weser, the Vistula, the Danube, and the Po, with their confluent rivers. The English government, so late as 1830, continued to assert a right, under the treaty of Vienna, or federal act of 1815, to the free navigation of the Rhine, and to hold that it was accessible to the vessels of all nations, to the extent of its navigation, subject to moderate duties, for the preservation of the paths on the sides of the river and for the maintenance of the proper police. And by the convention concluded at Mayence, March 31, 1831, between all the riparian states of the Rhine, the navigation of that river was declared free, from the point where it becomes navigable into the sea, including its two principal outlets or mouths in the kingdom of the Netherlands, the Leck and the Waal, passing by Rotterdam and Briel, through the first-named outlet, and by Dordrecht and Hellevoetsluis, through the latter, with the use of the artificial canal of Voorn and Hellevoetsluis. The convention provides regulations of police and toll duties on vessels and merchandise passing to and from the sea, through the Netherlands, and by the different ports of the upper states on the Rhine. Wheaton's Elements of International Law, 3d ed. 243-247; his History of the Law of Nations in Europe and America, New York, 1845, 498-506.
Lawrence to and from the sea, and it has been discussed at large between the American and British governments. (c)l (y)
6. Surrender of Fugitives. — When foreigners are admitted into a state upon free and liberal terms, the public faith becomes pledged for their protection. The courts of justice ought to be freely open to them as a resort for the redress of their grievances. But strangers are equally bound with natives to obedience to the laws of the country during the time they sojourn in it, and they are equally amenable for infractions of the law. It has sometimes been made a question how far one government was ' bound by the law of nations, and independent of treaty, to surrender, upon demand, fugitives from justice, who, having com-
(c) Mr. Wheaton in his Elements of International Law, 3d ed. 248-257, and in his History of the Law of Nations, 506, 517, has given the substance of the arguments, pro and con, taken from congressional documents of the sessions of 1827 and 1828. It was insisted on the part of Great Britain that this right of passage was not an absolute natural right, but an imperfect right, restricted to the right of transit for purposes of innocent utility, to be exclusively determined by the local sovereign. The commissioners and diplomatists of the United States, in 1805 and afterwards, stated, as a principle of international law, that when any European nation took possession of any extent of sea-coast, that possession extended into the interior country to the sources of the rivers emptying into that coast and to their mouths, with the bays and entrances formed by their junction with the sea, and to all the tributary streams or branches, and the country they covered. The authority of Vattel, b. 1, p. 266, is in support of that principle in a qualified degree, and is to be confined to the rivers so far as they flow within the territory. Mr. Wheaton, in his Elements of International Law, 3d ed. 1842, very justly confines such a claim of dominion of the state to the seas and rivers entirely enclosed within its limits.
1 The right to navigate great rivers is frequently made the subject of treaty. See the Reciprocity Treaty, now terminated, 10 U. S. St. at L. 1089, 1091, art. 4, as to the St. Lawrence; and, generally,
(y) Where a nation owns both banks of a navigable river it doubtless may, as a matter of strict legal right, exclude other nations at will, though enlightened policy may dictate a different course. See Hall, Int. Law, § 39. "Navigable watercourses which traverse the dominions of two or more sovereigns and on the freedom of which the commerce of the world in part depends, cannot, without a wrong to the commercial world as a whole, be per-
treaties of the United States with Argentine Confederation, ib. 1005; Mexico, ib. 1031; Bolivia, 12 U. S. St. at L. 1003, art. 27; Paraguay, ib. 1091, art. 2, &c. Also Halleck, Int. Law, c. 6, § 28 et seq.
manently obstructed by any one of the sovereigns by whom their banks are controlled. This was the position taken by the United States in its controversy with Denmark as to the sound, and such is now the view of the leading European powers as to all great thoroughfares of trade not inclosed entire within the realm of one particular sovereign." Wharton, Int. Law, §§ 40, 147, 150 e, 287.
mitted crimes in one country, flee to another for shelter. It is declared by some of the most distinguished public jurists, (d)
(d) Grotius, b. 2, c. 21, sec. 3, 4, 5, and Heineccius, Com. h. t. Burlamaqui, ii. pt. 4, c. 3, sec. 23-29; Rutherfbrth, b. 2, c. 9, ii. 496; Vattel, b. 2, c. 6, see. 76, 77. See Questions de Droit, tit. Etranger, par Merlin, for discussions on this subject in France. P. Voet, de Statutis, p. 297, says that the surrender of criminals is denied according to the usage of almost all Christian nations, except in cases of humanity (nisi ex humanitate), and Martens is of the same opinion. Martens, Law of Nations, b. 3, c. 3, sec. 23. The English decisions in support of the right and practice of surrender of fugitives charged with atrocious crimes are, Rex v. Hutchinson, 3 Keble, 785; Case of Lundy, 2 Vent. 314; Rex v. Kimberly, Str. 848; S. C. 1 Barnard. K. B. 225; Fitzgib. 111; East India Co. v. Campbell, 1 Ves. 246; Heath, J., in Mure v. Kay, 4 Taunt. 34; Eunomus, Dialog. 3, sec. 67; Serjeant Hill's opinion (and his authority and learning as a lawyer were pre-eminent), given to government in 1792. See Edin. Review, No. 83, pp. 129, 139, 141. Lord Coke, however, held that the sovereign was not bound to surrender up fugitive criminals from other countries. 3 Inst. 180. The American decisions on the question are, In the Matter of Washburn, 4 Johns. Ch. 106; Commonwealth v. Deacon, 10 Serg. & Rawle, 125; Rex v. Ball, decided by Ch. J. Reid, at Montreal, and reported in Amer. Jur. 297; Case of José Ferreire dos Santos, 2 Brock. 493. Two of those, viz., that in 4th Johnson and before Ch. J. Reid, are for the duty of surrender, and the other two against it, unless specially provided for by treaty. Mr. Justice Story cites the conflicting authorities, both foreign and domestic, on this interesting question, but intimates no opinion. 3 Comm. on the Constitution, pp. 675, 676; Comm. Conflict of Laws, pp. 520-522. But afterwards, in the United States v. Davis, 2 Sumner, 486, Judge Story expressed great doubts whether, upon principles of international law, and independent of statute or treaty, any court of justice is authorized to surrender a fugitive from justice. In the spring of 1839, George Holmes, being charged with the crime of murder, committed in Lower Canada, fled into the State of Vermont, and his surrender was demanded by the Governor-General of Canada. Application was made by authority in Vermont, to the President of the United States, who declined to act through an alleged want of power, and the case came back to the Governor of Vermont. After hearing counsel and giving the subject great consideration, Governor Jennison decided that it was his duty to surrender the fugitive. The case was afterwards, and before any actual surrender, carried up before the Supreme Court of that state upon habeas corpus, and elaborately argued in July, 1839, and the decision of the governor affirmed. The case was afterwards carried up to the Supreme Court of the United States, in the winter of 1840, and the court declared that they had no jurisdiction in the case. Holmes v. Jennison, 14 Peters, 540. Holmes was thereupon brought up before the Supreme Court of Vermont by habeas corpus, in April, 1840, and the question solemnly argued, and the decision was, that the state had no authority to surrender the prisoner, and he was accordingly discharged from custody. Case Ex parte Holmes, 12 Vermont, 631. It may be here properly observed that, according to the official opinion of the Attorney-General of the United States, 1797, it was the duty of the United States to deliver up, on due demand, heinous offenders, being fugitives from the dominions of Spain, and that, as the existing laws of the Union had not made any specific provision for the case, the defect ought to be supplied. Opinions of the Attorneys-General, i. 46. But afterwards, in 1821, the then Attorney-General of the United States,
that every {37} state is bound to deny an asylum to criminals, and, upon application and due examination of the case, to surrender the fugitive to the foreign state where the crime was
in an elaborate opinion given to the President, declared that the modern usage and practice of nations had been contrary to the doctrines of the early jurists, and that it was not now the law and usage of nations to deliver up fugitives from justice, whatever may be the nature or atrocity of the crime, unless it be in pursuance of a treaty stipulation. Opinions, &c. i. 384-392. If there be no treaty, he was of opinion that the government of the United States could not act on the subject, without authority conferred by an act of Congress, and which it would be expedient to grant, as the law is imperfect as it stands. Ibid. ii. 832, 902. When it is declared as the settled rule that the United States are not justified in the surrender of fugitives from justice, except in pursuance of a treaty stipulation, the United States are thus in effect declared, by national and state authorities, to be a safe asylum for all sorts of criminals, from all governments and territories, near or distant. So, also, all the high law authorities in Westminster Hall, in the case of The Creole, gave their opinions, in the British House of Lords, in February, 1842, that the English law and international law did not authorize the surrender of fugitive criminals of any degree, and that the right to demand and surrender must be founded on treaty, or it does not exist. (x)
(x) This case, which is discussed in 64 Hansard, 27-30, 317 et seq.; 6 Law Quarterly Rev. 38, established the principle in England that an alien friend will be expelled only under statutory authority. The Creole, laden with tobacco and slaves, left one port of the United States in 1841 for another, a voyage then lawful by American and International Law. Upon the high seas, the slaves seized the ship, killing one passenger, and forced the mate and crew to navigate the ship to Nassau. The United States demanded the surrender of the slaves for murder and piracy, maintaining also that the ship had touched at Nassau only under stress of circumstances. This demand was fully discussed in the House of Lords and at Westminster Hall, and was refused.
The United States and Great Britain hold criminal jurisdiction to be strictly territorial; but other nations, such as Russia, Norway, Portugal, and Germany, claim a criminal jurisdiction over all offences committed by their own subjects anywhere, even in foreign countries,
whether against the State, its subjects, or foreigners. See Cobbett's Int. Law Cases (2d ed.), 34. An aggrieved state appears to have the right to demand the fulfilment of an international duty such as preventing foreign subjects from disturbing its internal peace, but it has no right to ask for an alteration of the municipal law, and must leave it to the sovereign State to adopt its own means for the fulfilment of its international duties. See 10 L. J. 438. Territorial legislation cannot give jurisdiction recognizable by any foreign court against absent foreigners owing no allegiance or obedience to the legislating State. Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A. C. 670.
Crime is usually said to be local to the country where it is committed; and one country does not execute another's penal laws. Macleod v. Att.-Gen. [1891] A. C. 455; 17 Law Mag. & Rev. (4th Series), 250; 30 Cent. L. J. 261. So penalties can be recovered only in the jurisdiction where they are created. Wisconsin v. Pelican Ins. Co., 127 U. S. 265, where Mr.
committed. The language of those authorities is clear and explicit, and the law and usage of nations, as declared by them, rest on the plainest principles of justice. It is the duty of the government to surrender up fugitives upon demand, after the civil magistrate shall have ascertained the existence of reasonable grounds for the charge, and sufficient to put the accused upon his trial.
Justice Gray says: The rule applies also "to all suits in favor of a State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties." But the question whether a statute of one State, which is penal in some aspects, is also penal in this international sense, which depends upon its purpose, either to punish an offence against its public justice, or to afford a private remedy to a person injured by a wrongful act, is to be determined by the court called upon to enforce it, and in deciding this question that court must carefully observe the requirement that full faith, credit and effect are to be given to the judgments of other States. Huntington v. Attrill, 146 U. S. 657; 70 Md. 191; see 30 Cent. L. J. 262; 7 Times L. R. 341. Under the U. S. Constitution, it is an offence against the "Law of Nations" to counterfeit foreign securities, whether national or corporate, and Congress may legislate against such counterfeiting, though the notes are issued by a foreign corporation and not by a foreign nation; and a State has power to so legislate concurrently. United States v. Arjona, 120 U. S. 479; United States V. White, 27 Fed. Rep. 200. So a statute which enables personal representatives to sue for negligence causing death, being penal in its nature, is not enforceable out of the jurisdiction where the statute was enacted, though it has been held that such a right is suable when the State, in which the suit is brought, has also a statute substantially similar. O'Reilly v. New York & New England R. Co., 16 R. I. 338;
Burns v. Grand Rapids & I. R. Co., 113 Ind. 169; see Davis v. New York & New England R. Co. 143 Mass. 301; 58 Am. Rep. 138, and note; Nelson v. Chesapeake & O. R. Co., 88 Va. 971. Contra, as to the qualifying clause. Usher v. West Jersey R. Co., 126 Penn. St. 206. A statute which allows damages for causing a person's death gives no right of action for an injury inflicted in another country, though death takes place within the jurisdiction. De Harn v. Mexican N. R. Co., 86 Texas, 68.
Bigamy and polygamy, being criminal under the laws of all civilized and Christian countries, are not protected by the First Amendment of the U. S. Constitution, which prohibits laws respecting the establishment of religion. Davis v. Benson, 133 U. S. 333.
In Cutting's case, a newspaper article, libellous by the laws of Mexico, was published in that country by an American citizen who, being there arrested therefor, signed a "reconciliation," or withdrawal of the charge. Afterwards, when in Texas, in a newspaper there published, and known to be circulated in Mexico, Cutting repeated his statement in a more offensive form, for which he was again arrested and prosecuted in Mexico. Upon a demand for his release from our State Department on the ground that the offence was committed in this country, the prosecution was discontinued. The legal questions thus raised are discussed in 20 Am. L. Rev. 918; 23 id. 329; 20 Revue de Droit Int. 559; 22 id. 234; Snow's Int. Law, 172.
The guilty party cannot be tried and punished by any other jurisdiction than the one whose laws have been violated, and, therefore, the duty of surrendering him applies as well to the case of the subjects of the state surrendering, as to the case of subjects of the power demanding the fugitive. The only difficulty, in the absence of positive agreement, consists in drawing the line between the class of offences to which the usage of nations does, and to which it does not apply, inasmuch as it is understood, in practice, to apply only to crimes of great atrocity, or deeply affecting the public safety. (y) The act of the legislature of New
(y) International extradition cannot be granted by the several States. Holmes v. Jennison, 14 Peters, 540; Tarble's Case, 13 Wall. 397; Ex parte Morgan, 20 Fed. Rep. 298; People v. Curtis, 50 N. Y. 321. It is a privilege of the foreign government, and not the right of individuals. Re Ferrelle, 24 Blatch. 155.
Recent decisions of the U. S. Supreme Court establish that upon extradition of a fugitive from justice to a foreign country, under a treaty which specifies the offences subject to the extradition, he cannot be tried for any other offence than that named in the extradition proceedings against him: United States v. Rauscher, 119 U. S. 407; but, upon the surrender by one State to another of a person accused of crime, he may, by the weight of authority, be tried for offences not named in the requisition. Ibid.; Lascelles v. Georgia, 148 U. S. 537; State v. Glover, 112 N. C. 896; State v. Patterson, 116 Mo. 505; In re Cannon, 47 Mich. 481; State v. Hall, 40 Kansas, 338; 35 Cent. L. J. 301; 40 id. 148, and note. See In re Noyes, 17 Alb. L. J. 407: 28 Am. L. Rev. 568; Ex parte McKnight, 48 Ohio St. 588; Pooley v. Whetham, 15 Ch. D. 435; Commonwealth v. Hawes, 13 Bush, 697; State v. Stewart, 60 Wis. 587; People v. Cross, 135 N. Y. 536; Reid v. Ham, 54 Minn. 305; Commonwealth v. Wright, 158 Mass. 40; 19 L. R. A. 206, and note; Williams v. Weber, 1 Col. App. 191; Carr v. State
(Ala.), 16 So. Rep. 150, 155; Ham v. State, 4 Tex. App. 645.
In Ex parte Foss, 102 Cal. 347, the State Supreme Court held that the existence of a treaty with a foreign nation which specifies certain extraditable offences, does not limit the right of the nation, to which application is made, to grant or deny an asylum to the fugitive within its jurisdiction. A person extradited to this country for an offence named in a foreign treaty cannot be convicted here for a minor offence included therein but not included in the terms of the treaty. People v. Stout, 30 N. Y. Sup. 898; People v. Hannan, id. 370.
Though the practice differs in different nations, yet in the United States foreign extradition will be made only under a treaty and in such cases and upon such terms as are therein specified. See 6 A. G. Op. 85, 431; 14 id. 288; Holmes' Case, 14 Peters, 583; United States v. Watts, 8 Sawyer, 370. See Ex parte McCabe, 46 Fed. Rep. 363; In re Reinitz, 39 id. 204; Ker v. Illinois, 119 U. S. 443; Ker v. People, 110 Ill. 627.
The constitutional rules against bills of attainder and ex post facto laws appear to have no bearing on extradition treaties, which may, therefore, operate retrospectively, so as to apply to crimes committed before they went into effect. See Balfour's Case, as discussed in 49 Albany L. J. 137-139, 164; 50 id. 262; 11 Law Quart
York of the 5th April, 1822, c. 148, gave facility to the surrender of fugitives, by authorizing the governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death or imprisonment in the state prison; provided the evidence of criminality was sufficient, by our laws, to detain the party for trial on a like charge. (a) Such a legislative provision was requisite, for the judicial power can do no more than cause the fugitive to be arrested and detained, until sufficient means and opportunity have been
(a) The N. Y. Revised Statutes, i. 164, sec. 8, 9, 10, 11, have adopted and continued the same provision.
Rev. 378; see Re De Giacomo, 12 Blatch. 391; 24 Revue de Droit International, 553, 563. In Reg. v. Ashforth, 36 Sol. Journ. 234, the English Divisional Court refused to extradite a prisoner for new extradition offences, under the treaty of 1890 with this country, which were not clearly shown to have been committed after the time when that treaty came into force.
Under U. S. Rev. Stats. § 5270, the evidence before the examining magistrate need not be such as would be required at the trial of the accused, but should amount to probable cause for believing him guilty; under that statute, and our treaty with Salvador, the jurisdiction to hold fugitives from that country, whose surrender is demanded, is not affected by the manner in which they entered this country; and the evidence of their criminality is to be judged by the laws both of the United States and of the State in which they are arrested. In re Ezeta, 62 Fed. Rep. 964, 972; see 28 Am. L. Rev. 784, 879.
In foreign extradition, the accused may be arrested, without a requisition from the foreign government, upon a warrant issued by a U. S. commissioner, on complaint of a consul of such government. Benson v. McMahon, 127 U. S. 457; In re Luis Oteiza, 136 U. S. 330; In re Herres, 33 Fed. Rep. 165; In re Adutt, 55 id. 376; In re Minean, 45 id. 188. If certain of
the alleged offences are extraditable, it is immaterial that others are not. Be Bellencoutre, [1891] 2 Q. B. 122. When the accused is held for foreign extradition on a charge of theft, the stolen property cannot, it seems, be held for the purposes of the trial abroad. The Queen v. Lushington, [1894] 1 Q. B. 420. Delay for several years to prosecute abroad an offender reformed meanwhile in England is there regarded with suspicion. Francicis's Case, 30 L. J. 196.
Whether the offence is "of a political character," within the meaning of a treaty is a mixed question of law and fact; a "political crime" is a crime "incidental to and forming a part of political disturbances." In re Castioni, [1891] 1Q. B. 149, 157, 166.
Complicity in the Anarchist use of explosives in Paris has recently been held not to be a political offence giving an asylum in England; the court of first instance regarding it as aimed at all governments, and the Queen's Bench Division regarding the outrages as directed primarily at citizens, and as not an attempt to impose government by a party. See In re Meunier, [1894] 2 Q. B. 415; [1894] W. N. 118; 10 Law Quart. Rev. 269. As to political offences, see also 24 Revue de Droit Int., 17; 11 id. 475; 14 id. 403; 1 Moore on Extradition, ch. 8.
afforded for the discharge of this duty to the proper organ of communication with the power that makes the demand. (b)1
(b) The Constitution of the United States has provided for the surrender of fugitives from justice as between the several states, in cases "of treason, felony, or other crime;" but it has not designated the specific crimes for which a surrender is to be
1 Wheat. p. 2, c. 2, Dana's note 73. A judicial tribunal has not authority, independently of statute or treaty, to make extradition of a criminal. It was done in the case of Arguelles, 1864, by Mr. Seward, as an executive act, but the right of the executive power to do so is perhaps still open to question. In re Kaine, 14 How. 103, 112. It would seem clear that a state is under no obligation to surrender a criminal, unless it has agreed to do so by treaty. See further Halleck, c. 7, § 28; Twiss, pt. 1, § 221.
As to the surrender of fugitives as between the several states, see Matter of Voorhees, 3 Vroom (32 N. J.), 141; Kentucky v. Dennison, 24 How. 66; Matter of Clark, 9 Wend. 312; past, ii. 32, n. 1.
The United States have now extradition treaties with nearly all civilized nations. Dana's Wheaton, note 73; Lawrence's Wheaton, note 78. Some interesting questions have arisen under them in the courts of this country and of England. In Anderson's case, a slave killed a man in Missouri, and escaped to Canada, where he was demanded as a person charged with murder. The act did not amount to murder by the common law or law of England, and after the provincial court of Queen's Bench had ordered his surrender (20 U. C. Q. B. 124), it is said that the Canada Common Pleas discharged the prisoner. Dana's Wheaton, note 75; Abdy's Kent, 128, citing 11 Canada, C. P. 1; [see also 30 L. J. N. S. Q. B. 129; 6 B. & S. 525;] and also referring to Müller's Case, Times, Sept. 9 and 13, 1864.
Probably in general the terms of the treaty with England are to be construed as applying to those acts which are recognized throughout the United States and
England as constituting the specified crime. It has been held that they do not apply to an offence made forgery by a state law only. Windsor's Case, 6 Best & Sm. 522. Other cases on forgery are Muller's Case, 5 Phila. 289; S. C. Op. Att.-Gen. x. 501; United States v. Warr, 3 N. Y. Leg. Obs. 346; Matter of Heilbronn, 12 id. 65; In re Farez, 7 Blatchf. 345 (under the treaty with Switzerland). On the other hand, the treaty has been held not to cover piracy jure gentium, because that is an offence punishable by all nations; but only acts made piracy by the municipal law of the nation making the demand. In re Tivnan, 5 Best &, Sm. 645. [See Att.-Gen. v. Kwok-a-Sing, L. R. 5 P. C. 179.] Prisoners charged with a piracy created by act of Parliament may be given up without a statute carrying out the treaty, and before indictment. The British Prisoners, 1 W. & M. 66. See Matter of Metzger, 5 N. Y. Leg. Obs. 83 (S. C. 5 How. 176); Muller's Case, 5 Phila. 289; S. C. Op. Att.-Gen. x. 501. See generally Wheat. Dana's notes 74, 75; Lawrence's note 78; Matter of Kaine, 10 N. Y. Leg. Obs. 257; S. C. 14 How. 103. As to the conduct of proceedings. In re Henrich, 5 Blatchf. 414. As to state extradition, see People v. Curtis, 50 N. Y. 321. [The President's mandate is not necessary to the beginning of extradition proceedings. In re Hermann Thomas, 12 Blatchf. 370; In re Kelley, 2 Low. 339. A person may be extradited under a treaty, though the crime was committed and though the criminal had reached the extraditing country before the treaty was made, unless the treaty provides otherwise. In re Angelo De Giacomo, 12 Blatchf. 391. — B.]
The European nations, in early periods of modern history, made provision by treaty for the mutual surrender of criminals
made, and this has led to difficulties as between the states. Thus, for instance, in 1839, the Governor of Virginia made application to the Governor of New York for the surrender of three men, charged by affidavit as being fugitives from justice, in feloniously stealing and taking away from one Colley, in Virginia, a, negro slave, Isaac, the property of Colley. The application was made under the act of Congress of February 12, 1793, c. 7, sec. 1, founded on the Constitution of the United States, art. 4, sec. 2, as being a case of "treason, felony, or other crime," within the Constitution and the law, and certified as the statute directed. The Governor of New York refused to surrender the supposed fugitives, on the ground that slavery and property in slaves did not exist in New York, and that the offence was not a crime known to the laws of New York, and consequently not a crime within the meaning of the Constitution and statute of the United States. But the legislature of New York, by concurrent resolutions of the 11th of April, 1842, declared their opinion to be, that stealing a slave within the jurisdiction and against the laws of Virginia was a crime within the meaning of the 2d section of the 4th article of the Constitution of the United States. The executive and legislative authorities of Virginia also considered the case to be within the provision of the Constitution and the law, and that the refusal was a denial of right. It was contended, that the Constitution of the United States recognizes the lawful existence of slaves as property, for it apportions the representation among the states on the basis of distinction between free persons and other persons; and it provides, in art. 4, sec. 2, for their surrender, when escaping from one state to another: — that slaves were regarded by law as property in nearly all the states, and protected as such, and particularly in New York, when the constitution was made; that the repeal of those laws, and renunciation of that species of property, in one state, does not affect the validity of the laws, and of that species of property in another state; and that the refusal to surrender felons who steal that property in Virginia, and flee with it or without it to New York, on the ground that blacks are no longer regarded as property in New York, is a violation of the federal compact, and of the act of Congress founded thereon. This case and that of Holmes, mentioned in a preceding note, involve very grave considerations. I have read and considered every authority, document, and argument on the subject that were within my command, and in my humble view of the questions, I cannot but be of opinion that the claim of the Canadian authorities in the one case, and of the Governor of Virginia in the other case, were equally well founded, and entitled to be recognized and enforced. In the case from Canada, the jurisdiction of it belonged exclusively to the authorities of Vermont. The United States have no jurisdiction in such cases, except under a treaty provision. The duty of surrendering on due demand from the foreign government, and on due preliminary proof of the crime charged, is part of the common law of the land, founded on the law of nations as part of that law; and the state executive is to cause that law to be executed, and to be assisted by judicial process, if necessary. The statute of New York is decisive evidence of the sense of that state, and it was in every respect an expedient, just, and wise provision, in no way repugnant to the Constitution or law of the United States, for it was "no agreement or compact with a foreign power." The whole subject is a proper matter of state concern, under the guidance of municipal law (stipulations in national treaties always excepted), and if there be no express statute provision, the exercise of the power must rest in sound legal dis-
seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, {38] and England and Prance in 1308, and France and Savoy in 1378; and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr. Ward (a) considers these treaties as evidence of the advancement of society in regularity and order. (b)
cretion, as to the nature of the crime and as to the sufficiency of the proof. The law of nations is not sufficiently precise to dispense with the exercise of that discretion. But private murder, as in the Vermont case, is free of all difficulty, and it would be dealing unjustly with the aggrieved foreign government, and be eminently disgraceful to the character of the state and to our constitutional authorities, to give an asylum to fugitives loaded with such atrocity. If there be no authority in this country, state or national, to surrender such a fugitive, then it is idle to talk about the authority of the law of nations as part of the common law. Then "public law, the personification, as it were, of natural justice, becomes a mere nonentity, the beautiful figment of philosophers, and destitute of all real influence on the fortunes of mankind."
(a) History of the Law of Nations, ii. 318-320.
(b) By the treaty of amity, commerce, and navigation between Great Britain and the United States, in November, 1795, it was by the 27th article agreed, that persons charged with murder or forgery, seeking an asylum in the dominions of either party, should be delivered up on due requisition, provided the evidence of criminality be sufficient to justify apprehension and commitment for trial, if the offence had been committed in the jurisdiction where the requisition is made. But this treaty, on this and other points, expired by its own limitation after the expiration of twelve years. The provision was happily renewed by the treaty between the United States and the United Kingdom of Great Britain and Ireland, signed at Washington, August 9, 1842, and afterwards duly ratified. This treaty terminates the question, so far as the two countries are concerned, which had long embarrassed the councils and courts in this country. By the 10th article of the treaty it is declared, that the two powers respectively, upon requisitions by the due authorities, should deliver up to justice all persons who, being charged with the crime of murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, should seek an asylum, or should be found within the territories of the other; provided, that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed. A similar convention was made between the United States and France, and ratified at Washington, April 12, 1844; but the provision was extended to the crime of an attempt to commit murder, and to rape, and embezzlement by public officers, when the same is punishable with infamous punishment. The treaty provisions would seem to require statute provisions of the several governments to carry the treaties for surrendering fugitives more promptly into effect. The act of 8 & 9 Vict. c. 120, has such a provision in respect to the treaty of Washington in 1842; without any special provision on the subject, the power and duty of duly carrying into effect treaties of that kind would belong, exclusive of the state authorities, to the courts and magistrates of federal jurisdiction. The legisla-
7. Ambassadors. — Ambassadors form an exception to the general case of foreigners resident in the country, and they are exempted absolutely from all allegiance, and from all responsibility to the laws of the country to which they are deputed. (x) As they are representatives of their sovereigns, and requisite for negotiations and friendly intercourse, their persons, by the consent of all nations, have been deemed inviolable, and the instances are rare in which popular passions or perfidious policy have violated this immunity. Some very honorable examples of re-
ture of the Kingdom of Belgium, by a law of the 1st of October, 1833, authorized the surrender of fugitives from foreign countries upon the charge of murder, rape, arson, counterfeiting the current coin or forging public bank paper, perjury, robbery, theft, peculation by public trustees and fraudulent bankrupts; but with the proviso that the law of the foreign country be reciprocal in the case, and that the judgment or judicial accusation be duly authenticated, and the demand be made within the time of limitation prescribed by the Belgic law. M. Pinheiro-Ferreira severely condemns this law, and contends for protection to the fugitive, and that the tribunals of the country to which he resorts should take cognizance of criminal cases equally as of matters of contract! See Cours de Droit Public, par Le Comm. S. Pinheiro-Ferreira, Paris, 1830, ii. 24-34; Revue Étrangère de Législation, et d'Économie Politique, No. 2, Paris, December, 1833. Some other foreign jurists, of more established reputation, maintain the same doctrine, and hold that crimes committed in one state may, if the criminal be found in another state, be, upon demand, punished there. Hurtius, de Collis. Leg. P. Voet, de Statut. cited in Story's Comm, on the Conflict of Laws, 516-520; Martens, Law of Nations, b. 3, c. 3, sec. 22, 23; Grotius de Jure, B. & P. b. 2, c. 21, sec. 4. The latter says, that every government is bound to punish the fugitive criminal on demand, or deliver him up. But the better opinion now is, both on principle and authority, that the prosecution and punishment of crimes are left exclusively to the tribunals of the country where they are committed. Kames, Princip. of Equity, ii. 326; Merlin, Répertoire, Souveraineté, sec. 5, n. 7, pp. 757, 758; Pardessus, Droit Comm. v. art. 1467. If, indeed, the fugitive is to he tried and punished for a crime committed out of the territory, the punishment must be according to the law of the place where the offence was committed. Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur. Bartholus, cited in Henry on Foreign Law, 47. It is, however, a decided and settled principle in the English and American law, that the penal laws of a country do not reach, in their disabilities or penal effects, beyond the jurisdiction where they are established. Folliott v. Ogden, 1 H. Black. 123, 135; Lord Ellenborough, Wolff v. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v. Green, 17 Mass. 514, 539-543; Scoville v. Canfield, 14 Johns. 338, 440.
(x) By the act of Mar. 1, 1893, ch. 182, (27 St. L. 497) our diplomatic representative in a foreign country may be designated of the same grade as is given by that country to its representative here.
The rule of public law prevailing among
the European monarchies that an ambassador's authority expires on the death, deposition, or abdication of the reigning prince, does not apply as between the American republics, in which the executive power is permanent and uninterrupted. 7 A. G. Op. 582.
spect for the rights of ambassadors, even when their privileges would seem in justice to have been forfeited on account of the gross abuse of them, are to be met with in the ancient Roman annals, notwithstanding the extreme arrogance of their pretensions and the intemperance of their military spirit. (c) If, however, ambassadors should be so regardless of their duty, and of the object of their privilege, as to insult or openly attack the laws or government of the nation to whom they are sent, their functions may be suspended by a refusal to treat with them, or application can be made to their own sovereign for their recall; or they may be dismissed and required to depart within a reasonable time. (d) We have had instances, within our own times, of all these modes of dealing with ministers who had given offence; and it is not to be denied that every government has a perfect right to judge for itself whether the language or conduct of a foreign minister be admissible. The writers on public law go still further, and allow force to be applied to confine or send away {39} an ambassador when the safety of the state, which is superior to all other considerations, absolutely requires it, arising either from the violence of his conduct, or the influence and danger of his machinations. This is all that can be done, for ambassadors cannot, in any case, be made amenable to the civil or criminal jurisdiction of the country; and this has been the settled rule of public law, ever since the attempt made in the reign of Elizabeth to subject the Scotch and Spanish ambassadors to criminal jurisdiction, and the learned discussions which that case excited. (a)1 By fiction of law, an ambassador is considered
(c) Livy, b. 2, c. 4; b. 30, c. 25.
(d) In 1797, it was considered by the Attorney-General of the United States, in his letter to the Secretary of State, to be a contempt of the government, for a foreign minister, while a resident minister in the United States, to communicate his sentiments to the people of the United States through the press. His intercourse and correspondence of that kind is to be with the executive department of the government exclusively. Opinions of the Attorneys-General, i. 43.
(a) Grotius, b. 2, c. 18, sec. 4, Bynk. de Foro Legatorum, c. 8, 17, 18; Vattel, b. 4, c. 7, sec. 92-103, Ward's History, ii. 486-552; Marshall, Ch. J., in the case of the Schooner Exchange v. M'Faddon, 7 Cranch, 138; Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, pp. 236-261, has
1 The general privilege of a minister having no real estate in the foreign country is to be exempt from suit there, although neither his person nor goods are
touched, and although the liability arises out of business engaged in there. Magdelena Steam Nav. Co. v. Martin, 2 El. & El. 94. See Valarino v. Thompson, 3 Seld.
as if he were out of the territory of the foreign power; and it is an implied agreement among nations, that the ambassador, while he resides within the foreign state, shall be considered as a member of his own country, retaining his original domicile, and the government he represents has exclusive cognizance of his conduct and control of his person. (b) An ambassador is also deemed under the protection of the law of nations in his passage through the territories of a third and friendly power, while upon his public mission in going to and returning from the government to which he is deputed. To arrest him under such circumstances would be a breach of his privileges as a public minister. (c) (x)
given an analysis or summary of Bynkershoek's treatise De Foro Legatorum, and which is justly regarded as an excellent work and of high authority. It is contained in the 2d volume of Byukershoek's works, published in 2 volumes, folio, at Leyden, 1767.
(b) Grotius, b. 2, c. 18, sec. 1-6; Wicquefort, de l'Ambassadeur, liv. I, sec. 27; Vattel, b. 4, c. 7, sec. 81-135; Bynk. de Foro Legat. c. 8. If an ambassador be concerned in trade, his property in that trade is liable to seizure, as in the case of any individual. Bynk. de Foro Legat. c. 14; Vattel, b. 4, c. 8.
(c) Vattel, b. 4, c. 7, sec. 63, 84; Holbrook v. Henderson, 4 Sandf. 619. In this case, Henderson, the minister from the Republic of Texas to France, was arrested in New York for debt, while on his return from France to Texas, by the way of New York, and the court discharged him from the arrest. It was held that an entry into the country in time of peace did not require, for the protection of the person, a passport, though the law assumes that passports may be granted by the government of the United States. Act of Congress, April 30, 1790, sec. 27. Passports, though named in our law, are unknown in practice. The protection is implied by natural and municipal law, and it is the duty of the courts of justice, when cases arise before them, to enforce the law of nations on this subject, as part of the law of the land. The doctrine of international law, as laid down by Vattel, is founded in good sense and public policy, and sustained by the interests and courtesy of nations. Grotius says, b. 2, c. 18, sec. 5, that the obligation to protect ambassadors extends only to the power to whom the embassy is sent, and does not extend to the power through whose territories the ambassador presumes to pass without a passport. But that harsh and narrow rule is now justly exploded.
(7 N. Y.) 576; Halleck, c. 9, §§ 14, 19 et seq. It has been held otherwise, if he voluntarily attorns to the jurisdiction in such a case. Taylor v. Best, 14 C. B. 487. But see Valarino v. Thompson, 3
(x) A foreign minister is exempt from service of process in a civil action when passing through this country to his post in another. Wilson v. Blanco, 4 N. Y. S. 714. His immunity from process does
Seld. 576. He cannot waive his immunity from arrest. United States v. Benner, 1 Baldw. 234, post, 182, n. (b). See Wheat. Dana's note 129; Halleck, c. 9, § 16 et seq; [Hall, Int. Law, pt. 2, c. 9.]
not cease upon his recall and the appointment of his successor, but continues for a reasonable time to enable him to wind up his official business and prepare for his return home. Musurus Bey v. Gadban,
The attendants of the ambassador attached to his person, and the effects in his use, and the house in which he resides, and his domestic servants, are under his protection and privilege, and
{1894] 1 Q. B. 533; 2 id. 352; q. v. also as to the effect of the Statute of Limitations upon his rights. In England, an ambassador's privileges appear to be wider than those of his sovereign, inasmuch as, under the statute of Anne, service of a writ upon him appears to be void, and since he cannot waive his privilege, as his sovereign may, he can be held upon a counter-claim, when he sues as plaintiff, only to the extent that it is strictly a defence to the suit. See 10 Law Quarterly Rev. 295.
The immunity is not personal, but is the privilege of his government; hence his assent to any infringement of that privilege is immaterial. United States v. Benner, Baldw. 234. The privilege extends to the domestic servants and the secretary and attachê of the ambassador who perform bona fide and substantial services for him. Hopkins v. De Robeck, 3 T. R. 79; Parkiuson v. Potter, 16 Q. B. I). 152; Ex parte Cabrera, 1 Wash. 232; United States v. Lafontaine, 4 Cranch, C. C. 173; United States v. Jeffers, id. 704; Respublica v. De Longchamps, 1 Dallas, 111; Barr's Int. Law, 492 n. In Re Cloete, 65 L. T. 102; 7 T. L. R. 565, a British subject, who was appointed honorary attache of the Persian embassy in London, was held not entitled to use such appointment to shield him from a petition in bankruptcy, or other civil process relating to business carried on in London. But in general a British subject, so accredited by a foreign government, is exempt from the local jurisdiction in the absence of an express condition that such jurisdiction is retained. Macartney n. Garbutt, 24 Q. B. D. 368. An attache to a foreign ambassador in England is not liable for rates assessed on his private residence. Parkinson v. Potter, 16 Q. B. D. 152.
As to the proof of such relation to a foreign embassy as will exempt from suit, see also In re Baiz, 135 U. S. 403; Hollander v. Baiz, 41 Fed. Rep. 732; Ex parte Hitz, 111 U. S. 766.
A foreign minister is exempt from a mechanic's lien law only as to his personal residence. Byrne v. Herran, 1 Daly, 344. He is also exempt from distress for rent: Wheaton's Case, Wheaton's Int. Law (3d ed.) 225; and from process to compel his attendance and testimony as a witness before the courts. Dubois's Case, Sen. Ex. Doc. No. 21, 34th Congress, 3d Session; Dillon's Case, 1 Wharton's Digest, 665; see Ibid. 669.
A foreign minister and those strictly belonging to the embassy are in general exempt from the criminal jurisdiction of the country to which they go. See Nitchencofl's Case, 10 Sol. J. 56; Respublica v. De Longchamps, 1 Dallas, 111; United States v. Liddle, 2 Wash. C. C. 205; United States v. Ortega, 4 id. 531; 11 Wheat. 467. But an ambassador may be arrested and imprisoned if he engages in acts dangerous to the safety of the State to which he is accredited; and if he intermeddles in the local affairs of such State, as by suggesting how the elective franchise should there be exercised, his recall may properly be requested. See Cobbett's Int. Law Cases (2d ed.), 109, and Lord Sackville's Case (1888), there cited. Where fault is justly found with the conduct of a foreign ambassador, the usage of nations is to address a note to the Government of the offender, intimating that his continued presence in his official capacity would be unacceptable, and requesting that he may be recalled. But in cases of great urgency, summary expulsion may be resorted to, as where the ambassador's conduct amounts to actual conspiracy against, or causes
equally exempt from the foreign jurisdiction, though there are strong instances in which their inviolability has been denied and invaded. (d) The distinction between ambassadors, ministers plenipotentiary, envoys extraordinary, and resident ministers relates to diplomatic precedence and etiquette, and not to their essential powers and privileges. (e)
(d) Rutherforth, b. 2, c. 9; Ward's History, ii. 552, 553; Vattel, b. 4, c. 8, sec. 113; United States v. Hand, 2 Wash. 435; Opinions of the Attorneys-General of the United States, Washington, 1841, i. 89-91. The immunities of a public minister are considered as not extending to debtors, as to debts incurred prior to their entering into the minister's service, nor to fugitive slaves, nor to persons who were under previous duties, as soldiers, sailors, apprentices, minors, a wife, &c., nor does the privilege of immunity protect a laborer engaged to work in the garden attached to the minister's residence. Ib. The duties and privileges of a public minister are detailed at large by Mr. Wheaton, in his Elements of International Law, 3d edition, 264-387, and afterwards in his larger work on the History of the Law of Nations in Europe and America, New York, 1845, 236-261; and from his long residence at two of the European courts in a diplomatic character, his authority on the subject acquires additional force.
(e) Martens, 201-207; Vattel, b. 4, c. 6. Chargé d'affaires is a diplomatic representative or minister of the fourth grade; and a resident minister seems not to be equal to a minister plenipotentiary. Nor is a minister plenipotentiary of equal rank and dignity with an ambassador, who represents the person of his sovereign. The great powers, at the Congress of Vienna in 1815 and of Aix la Chapelle in 1818, by an arrangement, divided diplomatic agents into four classes: 1. Ambassadors, papal legates, or nuncios. 2. Envoys, ministers, and other agents accredited to the sovereigns. 3. Ministers resident, accredited to sovereigns. 4. Chargés d'affaires, accredited to the department of foreign relations. A minister extraordinary has not by that title any superiority of rank. The Comm. Pinheiro-Ferreira, the Portuguese publicist,
serious danger to, the government; and, in very extreme cases, the imperilled government may even be justified in seizing the minister's person and papers. See 14 Law Mag. & Rev. (4th Series), 113; Leslie's Case, 2 Ward's Law of Nations, 486; Mendoza's Case, id. 522; Da Sa's Case, id. 537; Gyllenborg's Case, id. 548; Prince Cellamare's Case, 1 Marten's Causes Célèbres, 149; Sackville's Case, supra.
The English courts have jurisdiction to try a crime committed in a foreign embassy by a person not belonging to it, and they have exclusive jurisdiction if the offender is a British subject. This is also maintained by both France and Germany, and is now a principle of International Law. See 20 Law Mag. & Rev. (4th Series), 49.
A contract to bribe or corruptly influence officers of a foreign government will not be enforced in the courts of this country; and where the consul-general of a foreign nation, residing here, contracted, for commissions, to use his influence, in favor of a manufacturer of fire-arms, for their purchase by the examining agent of his government, the contract was held void as against public policy, and although only the general issue was pleaded to his suit, the court of its own motion directed a verdict against the claimant. Oscanyan v. Arms Co., 103 U. S. 261; Lee v. Johnson, 116 U. S. 48, 52; Higgins v. McCrea, id. 671, 685. '
{40} A government may, in its discretion, lawfully refuse to receive an ambassador, and without affording any just cause for war, though the act would, probably, excite unfriendly disposition, unless accompanied with conciliatory explanations.1 The refusal may be upon the ground of the ambassador's bad character, or former offensive conduct, or because the special subject of the embassy is not proper, or not convenient for discussion. (a) A state may also be divided and distracted by civil wars, so as to render it inexpedient to acknowledge the supremacy of either party. Bynkershoek says, (b) that this right of sending ambassadors belongs to the ruling party, in whom stet rei agendi potestas. This is placing the right where all foreign governments
and himself a ministre d'état, in his Cours de Droit Public classes together charges d'affaires, ministers resident, or simply ministers or residents, as diplomatic agents of the third class. The United States are usually represented at the courts of the great powers of the first class by ministers plenipotentiary, and at those of an inferior class by a chargé d'affaires; and they have never sent a person of the rank of ambassador in the diplomatic sense. The Prince of Orange once expressed to Mr. Adams his surprise that the United States had not put themselves, in that respect, on a level with the crowned heads. Diplomatic Correspondence, edited by Mr. Sparks, vii. 108. The questions concerning precedence among the members of the diplomatic corps at foreign courts were all happily settled by the Congress of Vienna, in 1815, and signed by the representatives of the eight principal European powers. It was agreed that diplomatic agents of the respective classes take rank according to the date of the official notice of their arrival, and that the order of signature of ministers to acts or treaties between several powers that allow of the alternate, should be determined by lot. Recueil des Pièces Officielles, viii. No. 17; Wheaton's Elements of International Law, 265; his History of the Law of Nations in Europe and America, New York, 1845, 496.
(a) Rutherforth, b. 2, c. 9; Bynk. de Foro Legatorum, c. 19, sec. 7.
(b) Quest. J. Pub. lib. 2, c. 3.
1 Dana's Wheaton, note 137; Annual Register, 1843, p. 160; 1856, p. 277, &c.
The government of a revolted state which has not yet been recognized, sometimes sends out diplomatic agents, who, although not invested with the representative character, nor entitled to diplomatic honors, may be clothed with the powers and enjoy the immunities of ministers. Despatch of Earl Russell to Lord Lyons, Jan. 23, 1862; North Am. Pap. Nov. 4, 1862, p. 234, cited Abdy's Kent, 135; cited Dana's Wheat. note 121, as Parl. Pap. N. A. No. 5. But Mr. Seward has stated, in the case of the Mexican Empire,
that the government of the United States holds no official intercourse, or unofficial or private interviews, with agents of parties in any country which stand in an attitude of revolution antagonistic to the sovereign authority in the same country with which the United States are on terms of friendly intercourse. Memoranda of March 13 and July 17, 1865; Ex. Doc. 20, 39th Cong. 1st Sess., cited Dana's Wheaton, note 41; Despatch of Mr. Seward to Mr. Bigelow, March 13, 1865; Dip. Corr. 1865, pt. 3, 378.
See, as to recognition, ante, 25, n. 1.
place it, in the government de facto, which is in the actual exercise of power; but the government to whom the ambassador is sent may exercise its discretion in receiving or refusing to receive him.
It sometimes becomes a grave question, in national discussions, how far the sovereign is bound by the act of his minister. This will depend upon the nature and terms of his authority. (c) It is now the usual case for every government to reserve to itself the right to ratify or dissent from the treaty agreed to by its ambassador. A general letter of credence is the ordinary letter of attorney, or credential of the minister; and it is not understood to confer a power {41} upon the minister to bind his sovereign conclusively. To do so important an act would require, at least, a distinct and special power, containing an express authority to bind the principal definitively, without the right of review, or the necessity of ratification on his part. (a) This is not the ordinary or prudent course of business. Ministers always act under instructions which are confidential, and which it is admitted they are not bound to disclose; (b) and it is a well-grounded custom, as Vattel observes, (c) that any engagement which the minister shall enter into is of no force among sovereigns, unless ratified by his principal. This is now the usage, although the treaty may have been signed by plenipotentiaries. (d)
8. Consuls. — Consuls are commercial agents, appointed to reside in the seaports of foreign countries, with a commission to watch over the commercial rights and privileges of the nation
(c) The discretion and reserve with which a public minister ought to act in relation to the country in which he resides is strongly exemplified in the case of The Sally Ann, Stewart's Vice-Adm. R. 367. It was held, that a license granted by the British minister at New York, after the commencement of the war of 1812, to an American citizen, to export provisions to a British island, was inconsistent with his diplomatic character and duty, and void; and the decision was declared to be correct and proper, by the Lords Commissioners on appeal.
(a) Bynk. Q. Jur. Pub. lib. 2, c. 7.
(b) Wicquefort's L'Amb. i. sec. 14; Martens, 217.
(c) B. 4, c. 6, sec. 77.
(d) Bynk. ubi supra; Vattel, b. 2, c. 12, sec. 156; Martens, b. 2, c. 1, sec. 3; The Eliza Ann, 1 Dodson, 244. Both Vattel and Kluber agree that a treaty concluded under a full power cannot, in honor, be rejected without very sufficient reasons, as by violation of instructions, mutual error, a moral or physical impossibility, &c. Wheaton's Elements, 3d ed. 303-306. See in Wheaton's Elements, 3d ed. 335, a reference to the most respectable writers on diplomatic history.
deputing them. The establishment of consuls is one of the most useful of modern commercial institutions. They were appointed about the 12th century, in the opulent states of Italy, such as Pisa, Lucca, Genoa, and Venice, and their origin has been ascribed to the necessity for extraordinary assistance in those branches of commerce formerly carried on with barbarous and uncivilized nations. (e) The utility of such a mercantile officer has been perceived and felt by all trading nations, and the Mediterranean trade in particular stands highly in need of such accredited agents. (f) Consuls have been multiplied and extended to every part of the world where navigation and commerce can successfully penetrate, and their duties and privileges are now generally limited and defined in treaties of commerce, or by the {42} statute regulations of the country which they represent. (x) In some places they have been invested with judicial powers over disputes between their own merchants in foreign ports; but in the commercial treaties made by Great Britain there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers; and in England it has been held that a consul is not strictly a judicial officer, and they have there no judicial power. (a) It has been urged by some writers, as a matter highly expedient, to establish rules requiring merchants abroad to submit their disputes to the judicial authority of their own consuls, particularly with reference to shipping concerns. But no government can invest its consuls with judicial power over their own subjects in a foreign country, without the consent of the government of the foreign country, founded on treaty; and there is no instance in any nation in Europe of the
(e) 1 Chitty Comm. Law, 48, 49.
(f) Jackson on the Commerce of the Mediterranean, p. 30, c. 4. Consuls were not unknown to the ancient Athenians, and they had them in the commercial ports in which they traded, to protect the interests and property of Athenian merchants. St. John's History of the Manners and Customs of Ancient Greece, iii. 282.
(a) Mansfield, Ch. J., in Waldron v. Coombe, 3 Taunt. 162; 1 Chitty, 50, 51.
(x) A consul may acquire a domicile in the country where he is stationed, if he intends to do so, but appointment to a consular office in one's own country, or residence abroad as such an officer, does not change the domicile. Sharpe v. Cris-
pin, L. R. 1 P. & D. 611; Udny v. Udny, L. R. 1 H. L. Sc. 441; Westlake's Private Int. Law (2d ed.) § 257; In re Patience, 29 Ch. D. 976; Abd-ul-Messih v. Farra, 13 A. C. 431.
admission of criminal jurisdiction in foreign consuls. (b)1 (y) The laws of the United States, on the subject of consuls and vice-
(b) Pardessus, Cours de Droit Comm. v. sec. 1450, 1451, 5th ed.; Opinions of the Attorneys-General of the United States, i. 786.
1 The act of June 22, 1860, 12 U. S. St. at L. 72, in pursuance of treaties, gives judicial powers to United States consuls in China, Japan, Siam, Turkey, Persia, Tripoli, Tunis, Morocco, and Muscat, and also in other uncivilized countries. Their jurisdiction, both civil and criminal, is to be in accordance with the laws of the United States and the common law, including equity and admiralty, and they are to supply defects by decrees. In some cases an appeal is given to the minister. See Lawrence's Wheaton, note 74. [As to the extent of such jurisdiction, see Dainese v. Hale, 91 U. S. 13; Dainese v. United States, 15 Ct. of Cl. 64. See, generally, Consular Convention between Austria-Hungary and United States of July 11, 1870; Hall, Int. Law, Appen. V.; Revue de Droit International, 10, 285, and 11, 45, "Étude sur la Jurisdiction Consulaire." — B.]
Apart from statute or treaty, it seems that an ambassador has not now civil or criminal jurisdiction, virtute officii, even among his suite. Wheat. Dana's note 128; Twiss, pt. 1, § 202.
But consuls of Christian states in countries not Christian have been thought to be general administrative and judicial agents of their nation as towards their countrymen. Mr. Att.-Gen. Gushing in 7 Att-Gen. Op. 342; vide ib. 18, 495, 565-8 Att.-Gen. Op. 380; 1 Vattel, Pradier Fodéré, 625; Wheat. Lawrence's notes 73, 74. So, as to British consuls in Turkey. The Laconia, 1 Br. & L. 117; S. C. 2 Moore, P. C. N. S. 161. See Barber v. Lamb, 8 C. B. N. S. 95.
The consul of a decedent's country can intervene of right, apart from treaty, only by way of surveillance, and without jurisdiction. 8 Op. Att.-Gen. 98. See act of Aug. 18, 1856, § 29; 11 St. at L. 52, 63.
The consular certificates mentioned in the text are not evidence, except so far as made so by statute. Levy v. Burley, 2 Sumn. 355; Brown v. The Independence, Crabbe, 54; Johnson v. The Coriolanus, Crabbe, 239; Catlett v. Pacific Ins. Co., 1 Paine, 594.
(y) "Neither under international law, nor under the statute law of the United States, has a consular officer of a foreign government a right to sit as judge or arbitrator within our territory, and render decrees or orders affecting personal liberty, which orders or decrees the courts of the United States are authorized or required to enforce, unless the consent of the United States to such jurisdiction has been given, either by express statute or treaty stipulation." Pardee, J. in Be Aubrey, 26 Fed. Rep. 848, 851.
A judge of a Consular Court, vested by treaty with plenary civil jurisdiction over
all British subjects within the jurisdiction, although such court is not expressly made a court of record, is not liable in damages for dismissing judicially, but without proof, an action which he holds to be vexatious. Haggard D. Pelicier Frères, [1892] A. C. 61. Jurisdiction conferred upon consuls or consular courts by treaties, in the absence of a government by British authority existing in the locality (such as exists in India) does not give rise to a change of domicile when British subjects permanently abide there under British protection. In re Tootal's Trusts, 23 Ch. D. 532; Abd-ul-Messih v. Farra, 13 A. C.
consuls, (c) specially authorize them to receive the protests of masters and others relating to American commerce, and they declare that consular certificates, under seal, shall receive faith and credit in the courts of the United States. It is likewise made their duty, where the laws of the country permit, to administer on the personal estates of American citizens, dying within their consulates, and having no legal representative, and to take charge of and secure the effects of stranded American vessels, in the absence of the master, owner, or consignee; and they are bound to provide for destitute seamen within their consulates, and to send them, at the public expense, to the United States. It is made the duty of American consuls and commercial agents to reclaim deserters and discountenance insubordination, and to lend their aid to the local authorities for that purpose, and to discharge the seamen cruelly treated. (d) It is also made the duty of masters of American vessels, on arrival at a foreign port, to deposit their registers, sea-letters, and passports with the consul, vice-consul, or commercial agent, if any,
(c) Acts of Congress of 14th April, 1792, c. 24, and of February 28, 1803, c. 62.
(d) Act U. S. 20th July, 1840, c. 23, sec. 11, 17. See infra, iii. 199, the treaty between the United States and Hanover, to the same effect.
431; Ex parte Limehouse Board of Works,
24 Ch. D. 177. The judgment of a consular court is, like other foreign judgments, only examinable by other courts for fraud or lack of jurisdiction. Messina v. Petrococchino, L. R. 4 P. C. 144. See also, as to consular courts, Piggott on Extraterritoriality, 59; 3 Jurid. Rev. 256;
25 Revue de Droit Int. 79, 213, 338; 23 id. 5, 176; 27 id. 313.
The government of the United States has power to make treaties with foreign powers providing tribunals for the exercise of judicial authority by its officials residing in their countries; but, as the Federal Constitution is not operative beyond our territory, its guarantees of presentment by a grand jury and trial by jury do not extend to these courts. In re Ross, 140 U. S. 453; 44 Fed. Rep. 185; see People v. Kernan (Japan), 22 Am. L. Rev. 126; The Ping On v. Blethen, 11 Fed. Rep.
607. Such a tribunal has jurisdiction to try, for an offence committed on an American vessel, when within its jurisdiction, the subject of a foreign nation who has enlisted in its crew. Ibid.; Ross v. McIntyre, 140 U. S. 453. But, where there is no treaty provision, a seaman committed in the United States by a foreign consul may be discharged by the courts. Be Aubrey, 26 Fed. Rep. 848; see Ellis v. '• Mitchell, Snow's Int. Law, 133; The Marie, 49 Fed. Rep. 286; The T. F. Oakes, 36 id. 442; Williams v. The Welhaven, 55 id. 80. A vice-consul's unrevoked exequatur entitles him to recognition by the courts, although the government which sent him has been overthrown by a revolution. United States v. Trumbull, 48 Fed. Rep. 94. As to the right of a consul of a foreign government to intervene and claim a vessel as its property, see The Conserva, 38 Fed. Rep. 431.
at the port; though this injunction only applies when the vessel shall have come to an entry, or transacted business at the port. (e) These particular powers and duties are similar to those prescribed by British consuls, and to consuls under the consular {43} convention between the United States and France, in 1788; and they are in accordance with the usages of nations, and are not to be construed to the exclusion of others, resulting from the nature of the consular appointment. (a)1 The consular convention between France and this country, in 1778, allowed consuls to exercise police over all vessels of their respective nation, "within the interior of the vessels," and to exercise a species of civil jurisdiction, by determining disputes concerning wages, and between the masters and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and altogether exclusive of any coercive authority; (b) and we have no treaty at present which concedes even such consular func-
(e) Toler v. White, Ware, 277; Matthews v. Offley, 3 Sumner, 115. American consuls, having no judicial power, cannot take cognizance of the offences of seamen in foreign ports, nor exempt the master from his own responsibility. The Wm. Harris, Ware, 367. But when an American vessel puts into a port of necessity for repairs, a survey to ascertain the damage may, it seems, according to usage, be directed by the American consul, as part of his official duty. Potter v. The Ocean Ins. Co., 3 Sumner, 27. The English Prerogative Court, before Sir Herbert Jenner, in 1839, in the case of Aspinwall v. The Queen's Proctor, 2 Curteis, 241, held that an American consul was not, in that capacity, permitted by the law of England to administer upon the personal estate of a domiciled citizen of the United States dying in England. The Crown takes charge of the property in trust, for payment of debts and distribution, according to the law of the owner's domicile.
(a) Beawes's L. M. i. tit. Consuls, 292, 293.
(b) Mr. Picketing to Mr. Pinckney, January 16, 1797.
1 See act of Congress of August 18, 1856, 11 U. S. St. at L. 52 et seq. c. 127.
As to the duties of British consuls, see Abdy's Kent, 148 et seq.
The act of Congress of June 11, 1864, makes provisions for carrying out the exclusive jurisdiction of foreign consuls and like officials over controversies between officers and any of the crew, or between any of the crew, of vessels of their nation, where such jurisdiction has been provided for by treaty. 13 U.S. St. at L. c. 116,
p. 121. A list of such treaties will be found in Lawrence's Wheaton, note 73. As to the consul's intervention on behalf of individuals of his nation, see The Adolph, 1 Curt. 87; Robson v. The Huntress, 2 Wall. Jr. 59; The Elizabeth, Blatchf. Pr. 250. As to his protest against the admiralty court's taking jurisdiction in certain cases, post, iii.; Becherdass Ambaidass, 1 Lowell, 569, 6 Am. Law Rev. 74; The Nina, L. R. 2 P. C. 38. (x)
(x) The Leon XIII., 8 P. D. 121.
tions. (c) The doctrine of our courts is, (d) that a foreign consul, duly recognized by our government, may assert and defend, as a competent party, the rights of property of the individuals of his nation, in the courts of the United States, and may institute suits for that purpose, without any special authority from the party for whose benefit he acts. But the court, in that case, said that they could not go so far as to recognize a right in a vice-consul to receive actual restitution of the property, or its proceeds, without showing some specific power for the purpose, from the party in interest.
No nation is bound to receive a foreign consul, unless it has agreed to do so by treaty, and the refusal is no violation of the peace and amity between the nations. Consuls are to be approved and admitted in the usual form; and if any consul be guilty of illegal or improper conduct, he is liable to have his exequatur, or written recognition of his character, revoked, and to be punished according to the laws of the country in which he is consul; or he may be sent back to his own country, at the discretion of the government {44} which he has offended. The French consuls are forbidden to be concerned in commerce, and, by the act of Congress of February 28, 1803, American consuls residing on the Barbary coast are forbidden also; but British and American consuls are generally at liberty to be concerned in trade; and in such cases the character of consul does not give any protection to that of merchant, when these characters are united in the same person. (a)1 Though the
(c) By the treaties of commerce and navigation between the United States and the Kingdom of Hanover, May 20, 1840, article 6, and between the United States and Portugal, of 23d April, 1841, it was provided that consuls, vice-consuls, and commercial agents should have the right, as such, to sit as judges and arbitrators in differences between the masters and crews of the vessels belonging to the nation whose interests were committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the tranquillity of the country, or the consuls should require such assistance, to cause their decisions to be carried into effect or supported. By the same treaties, foreign consuls may apply for the arrest and surrender of seamen deserting from their public and private vessels in port. See also treaties to the like effect with Sweden, Prussia, and Russia.
(d) The Bello Corrunes, 6 Wheaton, 168.
(a) Beawes's L. M. i. tit. Consuls, 291; 1 Chitty, 57, 58; The Indian Chief, 3 Rob. Adm. 27; Vattel, b. 4, sec. 114; Arnold and Ramsay v. U. Ins. Co., 1 Johns.
1 Coppell v. Hall, 7 Wall. 542; The Pioneer, Blatchf. Pr. 666; The Baltica, 11
Moore, P. C. 141; The Aina, 1 Spinks, Ec. & Ad. 313, 28 R. L. & Eq. 600. By the
functions of a consul would seem to require that he should not be a subject of the state in which he resides, yet the practice of the maritime powers is quite lax on this point, and it is usual, and thought most convenient, to appoint subjects of the foreign country to be consuls at its ports.
A consul is not such a public minister as to be entitled to the privileges appertaining to that character, nor is he under the special protection of the law of nations. He is entitled to privileges to a certain extent, such as for safe-conduct, but he is not entitled to the jus gentium. Vattel thinks (b) that his functions require that he should be independent of the ordinary criminal jurisdiction of the country, and that he ought not to be molested, unless he violates the law of nations by some enormous crime; and that, if guilty of any crime, he ought to be sent home to be punished. (c) But no such immunities have been conferred on consuls by the modern practice of nations; and it may be con-
Cas. 363. The treaties of commerce and navigation between the United States and Hanover, May 20, 1840, art. 6, and between the United States and Portugal, of 23d of April, 1841, art. 10, afford a sample of the stipulation usual in commercial treaties on this subject: "If any of the said consuls shall carry on trade, they shall be subjected to the same laws and usages to which private individuals of their nation are subjected in the same place." American consuls abroad have no salaries, and are paid by fees of office, except the consul at London, who has a salary of $2,000. A suggestion was made in Congress in March, 1840, that it would be advisable to change our consular system in that respect, by confining consuls to their business of consuls, and to allow them salaries. The Secretary of State of the United States, in his report to Congress of the 12th December, 1846, strongly recommended a revision and amendment of the consular system of the United States; and that the number, appointment, and compensation of consuls be regulated, and their duties and fees defined. He recommended the establishment of consuls-general, especially in respect to the Barbary states and some of the ports in the Levant; and he suggested a provision for 74 consuls and 55 vice-consuls, and also for consular agents; and that those in the more important ports be paid by salaries out of the public treasury, and with a prohibition to engage in mercantile pursuits. American consuls[hips] were generally held by commission merchants residing abroad; and foreign commerce ought not to be taxed with consular fees, except for limited purposes; and the fees ought to be regulated by the tonnage of the vessel. A consular code ought to define the powers and duties of consuls.
(b) B. 2, c. 2, sec. 34.
(c) De Steck, Essai sur les Consuls, sec. 7, p. 62, Berlin, 1790, draws the same conclusion from the commercial treaties in Europe since 1664.
act of Congress of Aug. 18, 1856, 11 U. S. St. at L. c. 127, pp. 52, 55, § 5, American consuls in a large number of places are forbidden to trade, and such seems to be
the modern English policy. Abdy's Kent, 142, note 2, citing Report, July 27, 1858, H. of C. No. 482.
sidered as settled law, that consuls do not enjoy the protection of the law of nations, any more than other persons who enter the country under a safe-conduct. In civil and criminal cases they are equally subject to the laws of the country in which they reside. (d) The same doctrine, declared by the public {45} jurists, has been frequently laid down in English and American courts of justice. (a) It seems, however, from some decisions in Prance, mentioned by Mr. Warden, (b) that foreign consuls cannot be prosecuted before a French tribunal, for acts done by them in France, by order of their government, and with the authorization of the French government, and that, in general, a consul cannot be prosecuted without the previous consent of his government. Consular privileges are much less extensive in Christian than in Mahometan countries. In the latter they cannot be imprisoned for any cause whatever, except by demanding justice against them of the Porte, (c) and they partake very considerably of the character and importance of resident ministers. They are diplomatic agents under the name of consuls, and enjoy the rights and privileges which the Ottoman Porte recognizes in relation to the foreign ministers resident at Constantinople. (d) By treaty, an entire immunity is usually given
(d) Wicquefort's L'Amb. b. 1, c. 5; Bynk. de Foro Legat. c. 10; Martens's Summ. b. 4, c. 3, sec. 8; Beawes, L. M. i. tit. Consuls; Barbuit's Case, Talbot's Cases, 281: Valin's Ord. i. liv. 1, tit. 9, de Consuls; Pardessus, Droit Comm. iv. 148, 183; Opinions of the Attorneys-General of the United States, i. 45, 302, Washington, 1841.
(a) Viveash v. Becker, 3 Maule & Selw. 284; Clarke v. Cretico, 1 Taunt. 106; United States v. Ravara, 2 Dallas, 297; The Commonwealth v. Cosloff, 5 Serg. & Rawle, 545; De La Foret's Case, 2 Nott & M'Cord, 217.
(b) On Consuls, 108-116.
(c:) 1 Chitty, 71.
(d) Calliere, de la Manière de Négocier avec les Souverains, pt. i. 94, London ed. 1750. The whole Frank quarter of Smyrna is at this day under the jurisdiction of European consuls, and all matters touching the rights of foreign residents fall under the exclusive cognizance of the respective consuls. So the consuls of Barcelona, in the middle ages, were clothed with many of the functions of modern resident ministers. In the negotiations of the American minister, Mr. Cushing, with the Chinese government, in 1844, the former observed that, in the intercourse between Christian and Mahometan states the Christian foreigner was exempted from the jurisdiction of the local authorities, and subjected to the jurisdiction of the minister, consul, or other authorities of his own government. It was observed, in the Report of the Secretary of State, in 1846, already referred to, that by treaties of the United States with Turkey and China, offences committed by American citizens in those countries were to be tried and punished by the consuls; and the gov-
to the persons, domestics, and effects of the resident consuls, and no consuls reside with the Barbary states but under the protection of treaties. (e)
Considering the importance of the consular functions, and the activity which is required of them in all great maritime ports, and the approach which consuls make to the efficacy and dignity of diplomatic characters, it was a wise provision in the Constitution of the United States which gave to the Supreme Court original jurisdiction in all cases affecting consuls, as well as ambassadors and other public ministers; and the federal jurisdiction is understood to be exclusive of the state courts. (f)1 (x)
ernments of the countries, when required, were to afford aid to enforce consular decisions. [Ante, 42, n. 1.]
(e) Shaler's Sketches of Algiers, 39, 307. By the treaty of amity and commerce between the United States and the Sultan of Muscat, in Arabia, ratified on the 30th of June, 1834, American consuls may be appointed to reside in the ports of the Sultan, where the principal commerce is carried on (and which, of course, may include ports on the African coast, and in the island of Zanzibar, within the domains of the Sultan). Such consuls are to be exclusive judges of all disputes in suits wherein American citizens shall be engaged with each other, and to receive the property of American citizens dying within his dominions; and the persons and property of the consuls and of their households are to be inviolate. The consular establishment of the United States is very imperfect, and especially in relation to the countries in the East Indian regions. The claims of commerce, as well as the character of the United States, would seem to require that the functions of consuls, and the provision for their support, should be better regulated, and that they ought not to be left to the necessity of making their consular duties subsidiary to their business as merchants and factors. See a valuable plan in relation to consular establishments in the countries east of the Cape of Good Hope, in a pamphlet entitled "Outline of a Consular Establishment for the United States of America in Eastern Asia," and which is noticed in the North American Review for October, 1838, followed by some judicious reflections on the subject.
Consuls residing in the five free ports of China, established by the treaty of peace between Great Britain and China in 1842, have, by the subsequent commercial treaty in 1843, between those powers, enlarged consular functions, including those which are in some respects judicial and executive.
(f) Commonwealth v. Kosloff, 5 Serg. & Rawle, 545; Hall v. Young, 3 Pick. 80; Davis v. Packard, 7 Peters, 276; Sartori v. Hamilton, 1 Green (N. J.), 107. See also, infra, 298, 304.
1 A foreign consul cannot waive his exemption from suit in a state court, Valarino v. Thompson, 3 Seld. (7 N. Y.)
576; Griffin v. Dominguez, 2 Duer, 656; such courts have no jurisdiction, although there are other defendants, Naylor v.
(x) The U. S. Rev. Stats., § 563, cl. 17, conferring upon the District Courts jurisdiction of all suits against consuls
and vice-consuls (except for certain offences) is constitutionally valid. Börs v. Preston, 111 U. S. 252; Re Baiz, 135 U.
Hoffman, 22 How. Pr. 510. But they have jurisdiction of suits brought by consuls, Sagory v, Wissman, 2 Benedict, 240; and the United States courts have jurisdiction of suits against them, Gittings v. Crawford, Taney, 1; St. Luke's Hospital v. Barklay, 3 Blatchf. 259; Graham v. Stucken, 4 Blatchf. 50; Bixby v. Janssen,
6 Blatchf. 315. Thus a consul may be sued in the United States District Court by one of his own nation to recover fees improperly exacted. Lorway v. Lousada, 1 Lowell, 77; 1 Am. Law Rev. 92. [See Wheat. Lawrence's note 143, as to the privileges of consuls in various countries.
S. 403. Formerly the U. S. Courts had an exclusive jurisdiction of such suits under that section and §711, cl. 8, but the repeal of the latter statute by the act of 1875, ch. 80, results in a concurrent jurisdiction in the State courts. Börs v. Preston, 111 U. S. 261; Froment v. Duclos, 30 Fed. Rep. 385; Miller v. Sels, 66 Cal. 341; De Give v. Grand Rapids F. Co., 94 Ga. 605. A foreign consul is not presumed to be an alien. Börs v. Preston, 111 U. S. 252.
A foreign consul has, as incident to his office, power to receive, for heirs residing abroad in his country, their shares of the estate of a person who died in this country. In re Tartaglio's estate, 33 N. Y. S. 1121.
Ambassadors, consul-generals, consuls, and commercial agents are not entitled to their salaries, or to be sent to their post, until they have qualified by taking oath and giving bond. Williams v. United States, 23 Ct. Cl. 46. Commissions received by a consul for settling a private estate, fees for "cattle-disease certifi-
cates," and for such exceptional matters as are not covered by the acts of Congress or the consular regulations, belong to the consul. United States v. Mosby, 133 U. S. 273; United States v. Badeau, 31 Fed. Rep. 697. So of fees which he receives for acting under the authority of a State government, and which are independent of his relation to the general government. United States v. Badeau, 33 Fed. Rep. 572. The government is entitled to the interest on "public moneys" deposited by a consul in bank. United States v. Mosby, 133 U. S. 273. By the Acts of Jan. 27, 1879 and June 18, 1888 (20 St. at L. 267; 25 id. 186) consular officers are to report market prices, duties, and port charges, rates of wages, &c. By the Quarantine Act of Feb. 15, 1893 (27 St. at L. 450) consular bills of health are required for vessels sailing to this country from foreign ports, and reports are to be made by consuls of the sanitary condition of foreign ports and places from which contagious or infectious diseases are or may be imported into the United States.
