the crew of the Noordland. Wildenhus was arrested by the local authorities under a charge of murder, whereupon a petition was presented to the United States Circuit Court for the Eastern District of New Jersey, for a writ of habeas corpus, with a view to secure the release of the offender in order to cause him to be transferred to the custody of the Belgian consul. This on the ground that, by the law of nations, and in accordance with the terms of the treaty of 1880, between the United States and Belgium, the State of New Jersey was without jurisdiction in the case. The application for the writ was denied and the prisoner was remanded to the custody of the state authorities, and the case was carried to the Supreme Court of the United States on appeal. It was there decided that article xii. of the treaty of March 9, 1880,' between Belgium and the United States, conferring power upon Belgian consuls in the United States to take cognizance of differences between captains, officers, and crews of Belgian merchant vessels in the ports of the United States, and providing that the local authorities shall not interfere except when a disorder arises of such a nature as to disturb tranquillity or public order on shore or in the port, does not apply to a case of felonious homicide committed on board a Belgian merchant vessel in a port of the United States; and does not deprive the local authorities of the port of jurisdiction over such a crime, committed by one Belgian upon the person of another Belgian,. both belonging to the crew of the vessel.' Cases of the "Sally" and the "Newton." The Sally was an American merchant vessel in the port of Marseilles, and the Newton was a vessel of the same character in the port of Antwerp, then under the dominion of France. In the case of the Sally, the mate, in the alleged exercise of discipline over the crew, had inflicted a severe wound upon one of the seamen; in that of the Newton one seaman had made an assault on an ' Treaties and Conventions of the United States, 1776-1887, pp. 80-84. 'Wildenhus vs. United States, 120 United States, 1. See also Reg. vs. Keyn, L. R. 2 Exch. Div 63; I Dig. Int. Law, §§ 35, 35a. other seaman in the vessel's boat. In each case the proper consul of the United States claimed exclusive jurisdiction of the offence, and a similar claim was advanced, in each case, by the authorities of the port. The French Council of State pronounced against the jurisdiction of the local tribunals. This was clearly because the things done were not such as to disturb the peace or tranquillity of the port.' THE PRINCIPLE OF EXTERRITORIALITY Definition; Application. In a limited number of cases states permit the jurisdiction of other states to be exercised within their territory. This is called the principle of exterritoriality. It is a fiction of law, invented to explain certain immunities and exemptions from the local law, which are recognized by all nations in their dealings with each other. It does not explain all of the circumstances that may arise in any of the cases to which it is applied, but it accounts for many, or most of them, more satisfactorily than does any other method of treatment that has been proposed. From the definition of a sovereign state it is apparent that such an exercise of jurisdiction can only be possible with the tacit or express consent of the state within whose territory it is exercised. It is therefore based upon comity, and is held to apply in the following cases: (1.) To Ships-of-War in Foreign Ports. It has been seen that the public armed vessels of a state, while on the high seas, are, like those of its merchant marine, subject only to the law of the state under whose flag they sail. By the general consent of nations this immunity from local jurisdiction is extended, in the case of public armed vessels, to cover the period of their sojourn in the ports or other territorial waters of a foreign state. There has been considerable discussion as to whether the exemption accorded to ships-of-war can be 'Dana's Wheaton, §§ 103, 104, note 63: Snow, Leading Cases, p. 121; Pitt-Cobbett, Leading Cases, p. 74; I Ortolan, Diplomatie de la Mer, p. 271; Annexe J. p. 445; I 2 Case of the Exchange, 7 Cranch, 116, 136. claimed as a matter of strict right, or is based upon the comity of nations. The latter view is now generally accepted. The board of arbitration in the Geneva case ruled that "the privilege of exterritoriality accorded to vessels of war has been admitted into the law of nations; not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual deference between different nations." In this view Phillimore and Story agree.' If, for reasons of state, the ports of a nation generally, or any particular ports, be closed against vessels of war generally, or the vessels of war of any particular nation, notice is usually given of such determination. If there is no such prohibition the ports of a friendly nation are considered as open to the public ships-of-war of all powers with whom it is at peace, and those vessels are supposed to enter such ports and remain in them under the protection of the government of the place.' Extent of the Privilege. War vessels are subject to the jurisdiction of the port in matters of quarantine, and are required to obey the local revenue laws and the port regulations on the subject of anchorage, lights, and harbor police. They may be compelled, by force if need be, to observe such regula tions as may be deemed necessary, by the state in whose ports they may be, for the maintenance of its neutrality. The privilege of exterritoriality does not apply to members the place. The implied license, under which such vessel enters a friendly port, may reasonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the If rights of hospitality. The Exchange, 7 Cranch, 116; The Santissima Trinidad, 7 Wheaton, 283; I Phillimore, § 344. 'Decision Geneva Tribunal, p. 184. 'A public armed vessel, in the service of a sovereign at peace with the United States, is not within the ordinary jurisdiction of our tribunals while in a port of the United States. But the sovereign power of the United States may interpose and impart such jurisdiction. there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports, and to remain in them, while allowed to remain, under the protection of the government of "Case of the Exchange, 7 Cranch, 141. I Halleck, pp. 188, 189; I Ortolan, chap. x.; Hall, § 55; Snow, Leading Cases, pp. 33-36. of the ship's company on shore. The local laws apply to them, under such circumstances, as fully and strictly as to any citizen of the state, or to any foreign sojourner. Crimes committed by officers of a public armed vessel or by members of its crew on shore, therefore, may not only be judicially noticed by the local tribunals, but may be made the subject of complaint in the diplomatic way.' Exemption from Process. The exemption of ships-of-war from local jurisdiction and process has been authoritatively discussed by Chief-justice Marshall in the case of the Exchange. "If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace; and those vessels are supposed to enter such ports and remain in them under the protection of the government of the place. Whether the public ships-ofwar of one nation enter the ports of another friendly nation 1 Bluntschli, Le Droit International Codifié, liv. iv. § 321; Pinheiro Ferreira, Cours de Droit Public, tit. ii. art. xviii. § 50; Hautefeuille, Droit des Nations Neutres, tome i. p. 349; I Halleck, p. 190. The privilege stands upon principles of public convenience, and arises from the presumed consent or license of nations, that foreign public ships coming into home ports and demeaning themselves according to law, and in a friendly manner, shall be exempt from the local jurisdiction. "But as such consent and license are implied only from the general usage of nations, they may be withdrawn upon notice at any time without just offence; and if afterwards such public ships come into our ports, they are amenable to our laws in the same manner as are other vessels." But, unless withdrawn, it is presumed to be conceded. is now settled that foreign ships-ofwar and boats, the particular property of a foreign sovereign, are And it not liable to process, though the ships and boats be at the time of the cause of action in the territorial waters of the state of process. The Exchange, 7 Cranch, 116, 145; the Santissima Trinidad, 7 Wheaton, 283: I Dig. Int. Law, § 36. A foreign ship-of-war, or any prize of hers in command of a public officer, possesses, in the ports of the United States, the rights of exterritoriality, and is not subject to the local jurisdiction. A prisoner of war on board a foreign man-of-war, or of her prize, cannot be released by habeas corpus issuing from courts either of the United States or of a particular state. But if such prisoner of war be taken on shore, he becomes subject to the local jurisdiction or not, according as it may be agreed between the political authorities of the belligerent and neutral power. -The President and Prize, VII Opin. Att.-Gen. p. 122 Cushing (1855); V Pradier-Fodéré, §§ 1360– 2400, under the license implied by the absence of any prohibition, or under an express stipulation by treaty, they are equally exempt from the local jurisdiction." Case of the "Sitka." In 1856, during the continuance of the Crimean War, the Sitka, a Russian vessel which had been captured by a public armed vessel of Great Britain, entered the port of San Francisco. She was navigated by a prizecrew which conferred upon her the character of a public armed vessel, and she had on board, at the time of her entry, several Russian prisoners. A writ of habeas corpus was issued by a court of the State of California and served upon the commanding officer of the Sitka, who sailed out of the harbor, without making the required return to the mandate of the writ. The matter was brought to the attention of the United States Government, by whom it was referred to the Attorney-General for an opinion as to the question of jurisdiction involved. It was held by that officer that a prisoner of war, on board a foreign ship-of-war, could not be released by a writ of habeas corpus issued by a court of the United States, or by the court of a particular state; on the ground that, so long as such prisoner remained on board the ship, they were in the territory and jurisdiction of their sovereign. There the neutral had no right to meddle with them. It was held, however, that if such prisoner be taken on shore, he becomes subject to local jurisdiction, or not, according as it may be agreed between the political authorities of the belligerent and neutral power.' Case of the "Maine." The United States battle-ship Maine entered the harbor of Havana, Cuba, on January 25, 1898. Immediately upon her arrival, the customary civilities were exchanged and the vessel was conducted, by a government pilot, to the anchorage assigned her, as a foreign vessel of war, by the local naval authorities. Here the ship remained at 'Case of the Exchange, 7 Cranch, 116; the Santissima Trinidad, 7 Wheaton, 325; I Halleck, chap. vi. $$ 25, 26; Wheaton, § 101; Hall, § 44; I Ortolan, Diplomatie de la Mer, liv. ii. chap. x.; Heffter, § 79; Foe lix, liv. ii. title ix. chap. i.; Hautefeuille, title vi. chap. i. § 1; Bluntschli, § 321. 2 Pitt-Cobbett, Leading Cases, p. 36; Hall, p. 189; VII Opinions of Attorney-General U. S. p. 122. |