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For these reasons this Tribunal is of opinion that the inhabitants of the United States are so entitled in so far as concerns this treaty, there being nothing in its provisions to disentitle them provided the treaty liberty of fishing and the commercial privileges are not exercised concurrently and it is so decided and awarded.
NOTE. — In 1912 an Agreement between Great Britain and the United States was signed and ratified, whereby they adopted with certain modifications the rules and methods of procedure recommended by the Arbitral Tribunal, “under which all questions which may arise in the future with regard to the exercise of the liberties referred to in Article I of the Treaty of October 20, 1818, may be determined in accordance with the principles laid down in the Award.” They also adopted the recommendations of the Tribunal as to the determination of the limits of bays contiguous to the territory of the Dominion of Canada, leaving for future consideration, if necessary, the question of the delimitation of Newfoundland Bays. (Supplement to the American Journal of International Law, Jan. 1913, pp. 41–46.)
27. Excerpts from the British Order in Council of March 16, 1893, assuming Jurisdiction over Certain Islands in the
Whereas by the second and sixth Sections of the British Settlements Act, 1887, it is Enacted,
(Here follows a recital of various enactments.)
And whereas there are in the Pacific Ocean certain Islands which are, or may hereafter become, British Settlements within the meaning of the said Act.
And whereas there are also in the Pacific Ocean certain Islands or places which are, or may hereafter come, under the protection of Her Majesty.
And whereas by treaty, grant, usage, sufferance, or other lawful means, Her Majesty has or may have power and jurisdiction in the said last mentioned islands and places..
Now, therefore, Her Majesty by virtue and in exercise of the powers in this behalf by the British Settlements Act, 1887, the Pacific Islanders Protection Acts, and the Foreign Jurisdiction Act, 1890, or otherwise, in Her Majesty vested, is pleased by and with the advice of her Privy Council to order, and it is hereby ordered, as follows:
4. The limits of this Order shall be the Pacific Ocean and the islands and places therein, including
(a) Islands and places which are for the time being British Settlements.
(6) Islands and places which are for time being under the protection of Her Majesty.
(c) Islands and places which are for the time being under no civilized government, but exclusive (except as in this Order expressly provided in relation to any particular matter) of
(1) Any place within any part of Her Majesty's dominions or the territorial waters thereof which is for the time being within the jurisdiction of the legislature of any British possession.
(2) Any place for the time being within the jurisdiction or protectorate of any civilised power.
5. In islands and places which are not British settlements, or under the protection of Her Majesty, jurisdiction under this Order shall be exercised (except only as this Order otherwise expressly provides) only over Her Majesty's subjects, and any foreigners or natives, in so far as by reason of being, or having been, on board a British ship or otherwise, they have come under a duty of allegiance to Her Majesty.
23. Crimes, offences, wrongs and breaches of contract against or affecting the person, property and rights of natives or foreigners, committed by persons subject to this Order, are, subject to the provisions of this Order, punishable or otherwise cognisable, in the same manner as if they were committed against or affected the person, property or rights of British subjects.
109. (1) Where a foreigner desires to institute or take a suit or proceeding of a civil nature against a British subject, or a British subject desires to institute or take a suit or proceeding of a civil nature against a foreigner, the Court may entertain the suit or proceeding, and hear and determine it at a place where such trial might be had if all parties were
British subjects, and in all other respects according to the ordinary course of the Court.
(2) Provided that the foreigner first files in the Court his consent to the jurisdiction of the Court; and also, if required by the Court, obtains and files a certificate in writing from a competent authority of his own government to the effect that no objection is made by that government to the foreigner submitting in the particular cause or matter to the jurisdiction of the Court; and also, if required by the Court, gives security to the satisfaction of the Court, to such reasonable amount as the Court directs, by deposit of money or otherwise, to pay fees, costs, damages, and expenses, and to abide by and perform the decision to be given by the court or on appeal.
28. Extract from the Judgment of Chief Justice Marshall
in the case of the Exchange
To the court, it appears, that where, without treaty, the ports of a nation are open to the private and public ships of a friendly power, whose subjects have also liberty without special license, to enter the country for business or amusement, a clear distinction is to be drawn between the rights accorded to private individuals or trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation.
The preceding reasoning has maintained the propositions that all exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory; that this consent may be implied or expressed; and that, when implied, its extent must be regulated by the nature of the case and the views under which the parties requiring and conceding it must be supposed to act.
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals did not owe temporary and local allegiance, and were not amenable to the jurisdiction of that country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption. But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity. The implied license therefore, 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 rights of hospitality.
Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign sovereign, entering a port open for their reception.
Bynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign sovereign is not distinguishable by any legal exemption from the property of an ordinary individual, and has quoted several cases in which courts have exercised jurisdiction over causes in which a foreign sovereign was made a party defendant.
Without indicating any opinion on this question, it may safely be affirmed, that there is a manifest distinction between the private property of the person who happens to be a prince, and
that military force which supports the sovereign power, and maintains the dignity and independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction; he may be considered as so far laying down the prince, and assuming the character of a private individual; but this he cannot be presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation he is intrusted to govern.
The only applicable case cited by Bynkershoek, is that of the Spanish ships of war, seized in Flushing for a debt due from the King of Spain. In that case the states generally interposed; and there is reason to believe, from the manner in which the transaction is stated, that, either by the interference of government, or the decision of the court, the vessels were released. This case of the Spanish vessels is, it is believed, the only case furnished by the history of the world, of an attempt made by an individual to assert a claim against a foreign prince, by seizing the armed vessels of the nation. That this proceeding was at once arrested by the government, in a nation which appears to have asserted the power of proceeding in the same manner against the private property of the prince, would seem to furnish no feeble argument in support of the universality of the opinion in favor of the exemption claimed for ships of war. The distinction made in our own laws between public and private ships would appear to proceed from the same opinion.
It seems, then, to the court, to be a principle of public law, that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction.
Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction, either by employing force, or by subjecting such vessels to the ordinary tribunals. But, until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tri