to confusion and anarchy by refusing to exercise jurisdiction in certain cases over foreign merchant vessels in her ports. The principle of territorial sovereignty and territorial jurisdiction over-rides that of the authority of a state over its merchantmen, when the two conflict. But if the former is not enforced the latter at once revives, and the vessels and crews come under the laws of their own country to the exact extent of their exemption from the laws of the country in whose waters they are staying. It is quite possible that French practice may in time become a rule of International Law. At present its application has to be secured by special treaty stipulations.

§ 120.

diction over all its

ships on the high seas.

The second of our fundamental rules on the subject of jurisdiction is that A STATE HAS JURISDICTION OVER ALL ITS SHIPS ON THE HIGH SEAS. For no pur- A state has jurispose can the complete jurisdiction of a state over its public vessels on the high seas be overridden or qualified by any exercise of authority on the part of another state. Even the right of search does not apply to them; and while the merchant vessels of neutrals must submit to be overhauled by the cruisers of both belligerents, their men-of-war are as free from molestation as they would be in time of profound peace. So absolute are the rights of a state over its public ships that some writers have sought to account for them by the statement that such vessels are floating portions of the territory of the state to which they belong. Obviously this is a fiction; but under the name of the principle of exterritoriality it has been made the basis of much elaborate reasoning, and has been very influential in the development of theories of immunity from territorial jurisdiction. We shall meet it again in connection with other subjects. Here it is sufficient to say that the position accorded by International Law to public vessels rests upon

1e.g. Hautefeuille, Droits des Nations Neutres, I., 253–255.

considerations of convenience and utility and receives ample support from the practice of civilized states. There is no need to invent a fiction in order to account for it, when we remember that a public vessel is under the command of the government of the country to which she belongs, and that to allow any other authority to detain her upon the high seas would be to derogate from its sovereignty and interfere with the due performance of its orders. Moreover the fiction is mischievous as well as unnecessary. It proves a great deal too much; for if a ship of war were really a portion of the territory of the state which owns her, the health laws and port regulations of any other state could under no circumstances be applied to her, whereas we shall see, when we come to consider the immunities of public vessels in foreign ports, that in them the local regulations about such matters must be obeyed.

With regard to merchant vessels on the high seas, International Law lays down that each state exercises jurisdiction over its own, and possesses no authority over those of other nations, except that in time of war its cruisers may search them and capture any whose proceedings justify seizure under the laws which regulate the conduct of neutrals. Jurisdiction over the vessels involves jurisdiction over all persons and things on board, including foreigners whether seamen or passengers. And this power carries with it a corresponding responsibility. A state is bound to give redress in its courts for wrongful acts done on board its merchant vessels on the high seas against foreigners, and is responsible for the acts of any such ship if it does what is illegal by International Law, except in the case of Piracy which is justiciable by every state, and of those offences against neutrality which belligerents are permitted to deal with themselves.

The question of a state's exclusive jurisdiction over its merchant vessels was involved in the quarrel between Great 1 See § 129.

Britain and the United States at the beginning of the present century. It arose out of the claim of the former to take British seamen from American vessels on the high seas and impress them for the royal navy. The matter was complicated by a dispute concerning the doctrine of inalienable allegiance; for some of the seamen forcibly taken were naturalized American citizens, whom the British Government regarded as still possessed of their original nationality. The main point at issue, however, was whether one state had a right to execute its laws within the merchantmen of another engaged in navigating the open ocean. To this all other questions were subsidiary. Side issues arose, such as the pressing need of Great Britain for seamen, her right to call upon all her subjects for aid in the great struggle with Napoleon, the provocative conduct of some American skippers who hovered outside British ports and made their vessels places of refuge for British deserters, the extent of the right of search, and the theory of the indelible character of citizenship; but the kernel of the controversy was the question of jurisdiction. There can be no doubt that Great Britain was wrong. Her claim was in direct conflict with admitted principle. It led to the War of 1812 between the two kindred nations; but the Treaty of Ghent, which closed the struggle in 1814, was silent as to the matter in dispute. After the great European peace of 1815 Great Britain gave up the practice of impressing seamen for her navy, and thus incidentally removed all chance of a renewal of the conflict. In 1842 Mr. Webster declared in his correspondence with Lord Ashburton that the United States would not in future allow seamen to be impressed from American vessels. The claim of right has never been formally abandoned by the British Government; but modern English writers regard it as indefensible, and it is not likely to be revived.2

1 Phillimore, Commentaries, Pt. III., Ch. xviii.

2 Wharton, International Law of the United States, § 331; Wheaton History of the Law of Nations, Pt, IV., § 35,

A state has Jurisdiction over its subjects abroad.

§ 121.

Our third fundamental rule is that A STATE HAS LIMITED JURISDICTION OVER ITS SUBJECTS ABROAD. This jurisdiction is personal, and it cannot as a rule be exercised unless the subjects in question come within the territorial or maritime jurisdiction of the state to which they belong. All civilized powers regard as punishable at home grave political offences against themselves committed by their subjects while resident abroad; and sometimes the more heinous crimes are looked upon in the same way, if they have not been already dealt with by the state in whose territory they took place and if the criminals are not subject to extradition. Crimes committed by subjects on board foreign vessels are placed in the same category with crimes committed on foreign territory. The jurisdiction claimed in these cases is a mixture of the personal and the territorial. It is personal in that the authority to take notice of the act and regard it as a crime is derived from the personal tie of allegiance subsisting between the doer and the state; it is territorial in that no arrest can be made or punishment inflicted until the offender has come within the state's territory or on board one of its vessels. Instances of purely personal jurisdiction are to be found when a state authorizes the establishment of a magistracy in barbarous districts bordering on its possessions but neither owned nor protected by any civilized power. Magistrates so appointed have a personal jurisdiction over subjects of the state who may be in the district assigned to them, but they can have no jurisdiction over others, seeing that they can claim no territorial authority. They are simply sent out into the wilderness to see that their fellow-citizens behave with a reasonable amount of propriety. Their authority is an emanation from the personal jurisdiction of the state over all its subjects wherever they may be; and it is capable of exercise in places outside the dominions or protectorates of

any civilized power, because no territorial jurisdiction exists there to override it. A good example of the assumption of such authority is to be found in the British Order in Council of Aug. 13, 1877, whereby Great Britain set up courts having authority over her subjects in a large number of places and islands in the Western Pacific, "the same not being within Her Majesty's dominions and not being within the jurisdiction of any civilized power." But foreigners were not to come under the jurisdiction thus assumed unless they filed in court a written consent obtained from the competent authorities of their own nation.1

§ 122.

A state has Juris

diction over all

pirates seized by

its vessels.

We now come to the fourth and last of our fundamental rules. It is that A STATE HAS JURISDICTION OVER ALL PIRATES SEIZED BY ITS VESSELS. Piracy is an offence against the whole body of civilized states, not against any particular one of them. It is a crime by International Law which defines it,2 and provides that the death-penalty may be inflicted upon those who are guilty of it. It is invariably connected with the sea, which is under no territorial jurisdiction, and it is justiciable by any state whose cruisers can capture those who are guilty of it. An act to be piratical must be An act of violence adequate in degree; but it need not necessarily be an act of depredation. Generally a pirate is merely a robber of the vulgarest and cruelest kind; but there have been cases in which acts done by unauthorized persons for political ends have been regarded as piratical, though the animus furandi was wanting and there was no thought of indiscriminate aggression upon vessels of all nations. A single act of violence will suffice, such, for instance, as the successful revolt of the crew of a vessel against their officers. If they

P

1 Hertslet, Treaties, XIV., 871-909.

2 Wheaton, International Law (Dana's ed.), 193, note 83.