well share the doubts of Wheaton,1 Hall, Westlake, and other authorities as to the existence of any right of jurisdiction in such cases. A state has authority over foreigners within its territory, not over foreigners abroad. An attempt to punish an alien within the territory for an offence committed before he came to it is an attempt to exercise jurisdiction over acts done in another state, and is thus contrary to the very principle of territorial jurisdiction on which it is nominally based. In similar cases a state can punish its own citizens; but its right to do so is based upon the personal claim it has to their allegiance wherever they may be. There is no personal tie in the case of aliens; and it may justly be contended that any attempt to exercise over them such jurisdiction as we are considering would give good ground for remonstrance from the state of which they were subjects. If the offences in question are grave crimes, the perpetrators may be surrendered by extradition to the authorities of the country where the wrong was done. If they are small matters, there is no need to notice them. It is true that most states refuse to extradite political offenders; but diplomatic complaint will usually secure the exercise on the part of a government of watchfulness to prevent its soil being made the scene of conspiracies against the political institutions of other countries. In any case an occasional failure of justice is preferable to putting the subjects of every state at the mercy of the law and administration of its neighbors. This view has been pressed and acted upon in several recent cases, notably in the controversy between the United States and Mexico with regard to Mr. Cutting, who was arrested and imprisoned in Mexico in 1886 for an alleged offence committed in Texas against a Mexican citizen. The Government of Washington demanded his release, which was granted after some delay. From the vigorous action taken by the American authorities on this occasion, 1 International Law, § 113. 2 International Law, § 62. 8 Annuaire de l'Institut de Droit International for 1880, pp. 50 et seq. it is evident that the United States is deeply committed to the view we have ventured to enunciate.1 § 126. It will be remembered that, when we claimed for a state jurisdiction over all persons and all things within its territory, we stated that there were a few exceptions. We will now proceed to enumerate them. First among those who when in a foreign country are not subject to ordinary rules come Foreign sovereigns and their suites. Exceptions to or dinary rules about Jurisdiction. (1) eigns and their suites. When the head of a state is visiting a foreign country or travelling through it in his official capacity, he and his effects are exempt entirely from the local jurisdiction. He cannot be proceeded against civilly or criminally and his immunities in this respect are shared by his attendants. If he conspires against the state, or permits his suite to do any acts against its safety, or harbors criminals and refugees in the residence assigned to him, he may be sent out of the territory, but he cannot be tried and punished within it. He may not, however, exercise any jurisdiction of his own within the state he is visiting. If any serious and urgent cases arise among his retinue, they must be sent home for trial. All immunities vanish, should a sovereign travel incognito as a private person; but he can at any time regain them by appearing in his official character. If the same person is both ruler and ruled, as the present Duke of Albany is sovereign in Saxe-Coburg-Gotha and subject in England, he would not be allowed to escape from any obligations that might accrue to him while resident in the country in which he was subject by pleading that he was sovereign in another country. 1 Report of the Department of State on Extraterritorial Crime and the Cutting Case, 1887. § 127. Next in our list of those who are free from local jurisdiction come Exceptions to ordinary rules about Jurisdiction. (2) Diplomatic agents of foreign states. Diplomatic agents of foreign states. When an accredited representative of a foreign power is residing in the country to which he is sent, or travelling through it or any other friendly country on his way to or from his post, he and his effects are in the main free from the local jurisdiction. The members of his official suite have similar immunities; and the inviolability attached to the person of the ambassador is held to extend itself to his wife and children, and to those members of his household who, though not possessed of the diplomatic character, are necessary for his convenience and comfort. We shall discuss the question of diplomatic immunity at some length when we come to deal with the subject of Legation and Negotiation; but we allude to it here in order to show that the privileges accorded to ambassadors are exceptions to the ordinary rules concerning state authority. § 128. Among those whose privileged position entitles them to exemption from the jurisdiction of a friendly power when they come within its territory, we must give a prominent place to The public armed forces of foreign states. Exceptions to or We will first consider the case of land forces and then discuss the extent of the immunities of sea forces. It is necessary to separate the two because the rules dinary rules about with regard to them differ. The universally recognized rule of modern times is that a state must obtain express permission before its troops can pass through the territory of another state, though the Jurisdiction. (3) forces of foreign states. contrary opinion was held strongly by Grotius1 and his views continued to influence publicists till quite recently. Permission may be given as a permanent privilege by treaty for such a purpose as sending relief to garrisons, or as a special favor for the special occasion on which it is asked. The agreement for passage generally contains provisions for the maintenance of order in the force by its own officers, and makes them, and the state in whose service they are, responsible for the good behavior of the soldiers towards the inhabitants. In the absence of special agreement the troops would not be amenable to the local law, but would be under the jurisdiction and control of their own commanders. With regard to ships of war, no special permission is required before they can enter the ports of a friendly state. Freedom of entry is assumed unless the local sovereign makes an express declaration to the contrary, which he can do on assigning good reasons. But in case of war he must treat both belligerents alike, and not admit the vessels of one while excluding those of the other. Exclusion is, however, very rare. The tacit permission to enter implied by the absence of any attempt to prevent entry is freely accorded, and is now held to carry with it a more or less complete exemption from the authority of the local sovereign. The accepted principle of modern times is that jurisdiction is waived when entry is allowed. But it must be admitted that this broad doctrine is of recent growth. In 1794 Attorney-General Bradford gave an opinion in the case of a British sloop of war, out of which six American citizens were taken by the local authorities while she was lying in the harbor of Newport, Rhode Island. On the case being referred to him by the Government of Washington, he replied that the laws of nations invest the commander of a foreign ship of war with no exemption from the jurisdiction of the country into which he comes. A similar opinion was 66 2 1 De Jure Belli ac Pacis, II., II., xiii. 2 Opinions of Attorneys-General of the United States, I., 47. given in 1799 by Attorney-General Lee in the case of the British packet Chesterfield, as to which he declared, “It is lawful to serve civil or criminal process upon a person on board a British ship of war lying in the harbor of New York,"1 and argued that due respect to the country visited involved obedience to such process. These views were by no means confined to American lawyers. They seem to have been held by authorities of the highest repute in England. Thus in 1820 Lord Stowell was asked by the British Government for an opinion upon the case of John Brown, a British subject who, having escaped from a prison into which he had been thrown by the Spaniards for aiding their revolted American colonies, took refuge on the British warship Tyne, lying in the harbor of Callao, and claimed the protection of the flag. In his reply the great English jurist not only declared that the captain of the British vessel had no right to protect Brown, but added "I am led to think that the Spaniards would not have been chargeable with illegal violence, if they had thought proper to employ force in taking this person out of the vessel." 2 Such doctrines as these would reduce the immunities of a public vessel almost to vanishing point. They would never probably have been acquiesced in on the continent of Europe, and even while they were being uttered in England and America a strong counter-current of opinion made itself manifest in quarters entitled to the utmost respect. Thus in 1810 Chief Justice Marshall, in delivering the judgment of the Supreme Court of the United States in the famous case of the Exchange, took occasion to discuss the whole subject of the exemption of public ships in foreign ports from the local jurisdiction. He placed permission to enter upon the ground of implied license, and, after pointing out that a ship of war could not do her duty to her 1 Opinions of Attorneys-General of the United States, I., 91. 2 Halleck, International Law (Baker's ed.), I., 188. |