points re

quiring notice.

CHAPTER IV.

SOVEREIGNTY IN RELATION TO THE TERRITORY

OF THE STATE.

PART II. § 47. IT has been seen that a state possesses jurisdiction CHAP. IV. within certain limits, in virtue of its territorial sovereignty, Enumera over the person and property of foreigners found upon its tion of the land and waters, and that it is responsible, also within certain limits, for acts done within its boundaries by which foreign states or their subjects are affected1. The broad statement of the rights which a state possesses, and of the duties by which it is affected, in these respects in a time of general peace, which has already been made, sufficiently indicates the law upon most points connected with them; but there are some special rules, and practices claiming to be legal, which have not been touched upon, and there are others of which the applications require to be examined in detail. These may be referred to the following heads :—

1. Exceptions, real or alleged, to the general right of exercising jurisdiction over foreign persons and property.

2. Extent of the right of a state to require aid from foreigners within its territory in maintaining the public safety or social order.

3. An alleged right to take cognizance of acts done by foreigners beyond the limits of a state if the persons who have done them subsequently enter its territorial jurisdiction. 4. The right of asylum and of adopting a foreigner into the state community.

5. Responsibility of a state.

1 See § 10, II.

CHAP. IV.

exterrito

§ 48. It is universally agreed that sovereigns and the PART II. armies of a state, when in foreign territory, and that diplomatic agents, when within the country to which they are Doctrine of accredited, possess immunities from local jurisdiction in respect riality. of their persons, and in the case of sovereigns and diplomatic agents with respect to their retinue, that these immunities generally carry with them local effects within the dwelling or place occupied by the individuals enjoying them, and that public ships of the state confer some measure of immunity upon persons on board of them. The relation created by these immunities is usually indicated by the metaphorical term exterritoriality, the persons and things in enjoyment of them being regarded as detached portions of the state to which they belong, moving about on the surface of foreign territory and remaining separate from it. The term is picturesque; it brings vividly before the mind one aspect at least of the relation in which an exempted person or thing stands to a foreign state; but it may be doubted whether its picturesqueness has not enabled it to seize too strongly upon the imagination. Exterritoriality has been transformed from a metaphor into a legal fact. Persons and things which are more or less exempted from local jurisdiction are said to be in law outside the state in which they are. In this form there is evidently a danger lest the significance of the conception should be exaggerated. If exterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate it is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested. This of course is conceivably its actual position. But the exclusiveness of territorial sovereignty is so important to international law and lies so near its root, that no doctrine which rests upon a mere fiction can be lightly assumed to have been accepted as controlling it. In examining the immunities in question, therefore, it will be best to put

PART II. aside for the present the idea of exterritoriality, and to view CHAP. IV. them solely by the light of the reasons for which they have been conceded, and of the usage which has prevailed with respect to them.

Origin of the immu

nities usually classed

under the

head of

exterrito riality.

The immunities which have been conceded to the persons and things above mentioned are prompted by considerations partly of courtesy and partly of convenience so great as to be almost equivalent to necessity. The head of the state, its armed forces, and its diplomatic agents are regarded as embodying or representing its sovereignty, or in other words, its character of an equal and independent being. They symbolise something to which deference and respect are due, and they are consequently treated with deference and respect. themselves. Supposing reasons of courtesy to be disregarded, immunities would still be required upon the ground of practical necessity. If a sovereign, while in a foreign state, were subjected to its jurisdiction, the interests of his own state might readily be jeopardised by the consequences of his position. In like manner the armed forces of a country must be at the disposal of that country alone. They must not be liable either to be so locked up as to be incapable of being used at will, or to be so affected by foreign interference as to lose their efficiency; and submission to local jurisdiction would open the door sometimes to loss of freedom, and sometimes to a supersession of the authority of the officer in command. Finally, it is for the interest of the state accrediting a diplomatic agent, and in the long run in the interest also of the state to which he is accredited, that he shall have such liberty as will enable him, at all times and under all circumstances, to conduct the business with which he is charged; and liberty to this extent is incompatible with full subjection to the jurisdiction of the country with the government of which he negotiates. The first of these sets of considerations was perhaps that which formerly had the greater influence. When states were identified with their sovereigns, and the relations of states were in great measure personal relations

of individuals, considerations of courtesy were naturally PART II. prominent; and to them must still be referred such estab- CHAP. IV. lished immunities as are not necessary to the free exercise of the functions of the exempted person or thing. Those immunities, on the other hand, which may claim to exist on the score of necessary convenience, though in many cases they may have in fact owed their birth to courtesy, can now be more properly referred to convenience, both because it is a less artificial origin, and because it corresponds better with the present temper of states, and so with the reasons by which they would be likely to be guided in making any modifications of actual custom, or in defining unsettled practice.

nities of a

$49. A sovereign, while within foreign territory, possesses Immuimmunity from all local jurisdiction in so far and for so long foreign as he is there in his capacity of a sovereign. He cannot be sovereign. proceeded against either in ordinary or extraordinary civil or criminal tribunals, he is exempted from payment of all dues and taxes, he is not subjected to police or other administrative regulations, his house cannot be entered by the authorities of the state, and the members of his suite enjoy the same personal immunity as himself. If he commits acts against the safety or the good order of the community, or permits them to be done by his attendants, the state can only expel him from its territory, putting him under such restraint as is necessary for the purpose. In doing this it uses means for its protection analogous to those which one state sometimes employs against another, when it commits acts of violence for reasons of self-preservation without intending to go to war. The privileges of a Sovereign consequently secure his freedom from all assertion of sovereignty over him or over anything or anybody attached to him in his sovereign capacity. On the other hand, he cannot set up an active exercise of his functions as a sovereign in derogation of the exclusive territorial rights of the state in which he is. If a crime is committed by a member of his suite, the accused person cannot be tried and punished within the precincts occupied by him; neither he nor his judges are

PART II. able to take cognizance of an action brought by a foreigner CHAP. IV. against persons in attendance on him, and if there is nothing

Position of a sovereign who

the cha

to prevent judgment being given in questions arising between the latter alone, the decision cannot at any rate be enforced. Criminals belonging to his suite must be sent home to be tried, and civil causes, whether between them or between subjects of other powers and them, must equally be reserved for the courts sitting within his actual territory. Again, a sovereign cannot protect in his house an accused person, not a member of his suite, who takes refuge from the pursuit of the local authorities. They cannot enter; but he is bound to surrender the refugee; and a refusal to give him up would justify the authorities in expelling the sovereign and in preventing the accused person by force from being carried off in his retinue1.

Where, as occasionally happens, a sovereign has a double personality, where, that is to say, he for some purposes 1. assumes assumes the position of a private individual, or where, while racter of a remaining sovereign in his own country, he is a subject elseprivate inwhere, he is amenable to foreign jurisdiction in dividual for certain is clothed with a private or subject character.

purposes;

so far as he Thus if he

enters the military service of a foreign country he submits to its sovereignty in his capacity of a military officer, and if he travels incognito he is treated as the private individual whom

' Bynkershoek, De Foro Legatorum, c. iii; Bluntschli, § 129, 136-42, 150–3; Phillimore, ii. § civ-viii; Heffter, § 42 and 53-4; Calvo, § 506-8 ; Fœlix, Droit Int. Privé, liv. ii. tit. ii. c. ii. sect. 4 (ed. 1847); Klüber, § 49; De Martens, Précis, § 172. Phillimore and Klüber consider that a sovereign within foreign territory has civil jurisdiction over his suite, and De Martens seems to concede to him both civil and criminal jurisdiction.

The immunity of a sovereign as the representative of his state for anything done or omitted to be done by him in his public capacity has been affirmed by the English courts in De Haber v. the Queen of Portugal (xx Law Journal, Q. B. 488), and the French courts gave effect to the same principle in the case of an action brought by a M. Solon against the Viceroy of Egypt.

If a sovereign appeals to the courts of a foreign state or accepts their jurisdiction he brings with him no privileges that can displace the practice as applying to other suitors." The King of Spain v. Hullet and Widder, i Clark and Finelly, H. of L. 333; Ca'vo, § 513.