sovereign if she were subject to the interference of another authority, he went on to say, "The implied license, therefore, under which such a vessel enters a friendly port may reasonably be construed, and it seems to the court should be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rites of hospitality." On this great judgment the doctrine now most widely held both in America and in Great Britain is based. In 1855 during the Crimean War the British cruiser President captured a Russian vessel called the Sitka and brought her into the harbor of San Francisco with a prize-crew on board. The local courts issued a writ of Habeas Corpus to try the validity of the detention of two of the prisoners. Process was served, but the commander of the Sitka immediately departed without obeying it. The opinion of Attorney-General Cushing was taken upon the case. He commended the captain for departing and thus avoiding unprofitable controversy, and took occasion to say that the courts of the United States had "adopted unequivocally the doctrine that a public ship of war of a foreign sovereign at peace with the United States, coming into our ports and demeaning herself in a friendly manner, is exempt from the jurisdiction of the country." This view is shared by British and American writers of repute and by almost all the international jurists of Continental Europe. Indeed it may be said to have been adopted by the publicists of the civilized world. Ortolan, the only one among them who by reason of his career as a naval officer is able to speak from practical experience, is most emphatic in his assertion of immunity. This consensus of opinion outweighs entirely the views of a few great English lawyers and one or two continental jurists who still cling to the ancient doctrine; and recent practice is in entire accord with it. Ships of war everywhere claim and everywhere receive exemption 1 Opinions of Attorneys-General of the United States, VII., 122. 2 Diplomatie de la Mer, Livre II., Ch. X. Q from the local jurisdiction. If International Law is to be deduced from practice, the controversy on this point is at an end. other not absolute and complete. § 129. But though exemption is the general rule, we shall find on an examination of the usages of states that it is not absolute and complete. Being based upon convenExemption of public vessels of one ience it is limited by convenience; and extreme state in the territorial waters of an inconvenience would obviously result if ships of war in foreign ports were at liberty to disregard ordinary harbor regulations and sanitary precautions. The local authorities can enforce all reasonable health and port regulations; and, if the visiting vessel is a belligerent, they may compel it to observe neutrality regulations, and may detain and try any prizes it has brought into the port, should there be good reason to believe that the captures were made in violation of their neutrality. It is further clear that a state may prevent the cruisers of another state from enforcing their revenue laws in its waters. These exceptions to the ordinary rule are amply sufficient to demonstrate the falsity of the theory that a ship of war is for all legal purposes a floating portion of the territory of the state to which she belongs. If she were anything of the kind, she could in no way be made amenable to the local jurisdiction. The case of politi- abused. § 130. The immunities granted to public vessels while lying in the territorial waters of friendly states ought not to be A ship of war is a floating fortress charged with the duty of protecting the interests of her country wherever she may be sent. To turn her into an asylum for fugitive criminals is a gross perversion of the purpose for which she was commissioned by her own sovereign, as well as a gross insult to the sovereign in whose waters she is staying. Any captain proved to be guilty of it ought to be dismissed from the service without ceremony. Even when a criminal has succeeded in taking refuge on board without the connivance of the commander, he should, if possible, be given up on demand unless his offence be political. But the demand should be or not. made diplomatically, not to the captain, who has no authority to hold an extradition court on board his vessel and decide whether the alleged offender should be surrendered Still less should any attempt be made by the local authorities to arrest the fugitive on board the foreign vessel of war. They have no power to enforce their law under its flag, and a commander who in such a case repelled force by force would be acting within his duty. The best course to take when a fugitive criminal is found on board, is to expel him at once. He can be turned out of the vessel into which he entered without right, though the captain cannot suffer him to be arrested while on board or entertain any demand for his surrender; and when he has been set on shore, the local authorities can deal with him. Political offenders are held to differ from ordinary criminals, and the great preponderance of modern opinion and practice is in favor of their reception. But even in their case the commanders of public vessels are bound to refrain from offering asylum and aiding escape. If a political refugee in danger of losing life or liberty is able to reach a foreign man-of-war lying in the waters of the country whose authorities are seeking to secure him, he may be allowed to come on board, and must be protected against arrest. This is the rule of Great Britain and America, and most civilized states concur in it. It applies also to the case of a political offender who escapes to some other country, and, having come on board in its waters, is taken by the vessel into a port of the country in which his offence was committed. But it should be noted that merchant vessels can offer no asylum to offenders of any kind. However unjust the local law may be, however tyrannical the government, however laudable resistance to its au thority, no safe place of refuge can be found on board a foreign merchantman in its ports. The local law applies to them; they are under the local jurisdiction; and the local authorities may enter them and arrest any of their subjects they may find there. But in November, 1893, when the Costa Rica, an American mail steamer, was fired upon at Amapala, Honduras, because her captain refused to deliver up General Bonilla, a political refugee who was a passenger on board, the United States protested against the act as wanton and illegal, and demanded an apology. The Government of Honduras promptly disavowed the conduct of its officers and expressed sincere regret at the occurrence.1 This case tends to show that, in the opinion of at least one of the great powers of the world, a private vessel may not be fired upon under the circumstances indicated, though she may be searched and must submit to have the refugee taken out of her. The case of fugitive slaves has raised a considerable amount of difficulty, especially in Great Britain. There can be no doubt that during the prevalence of that older view of the law which reduced to very small proportions the immunities of public vessels in foreign waters, slaves who escaped to British vessels lying in the ports of countries where slavery was legal were given up to the local authorities. But the growth of opinion in favor of the modern doctrine of exemption except for a few well-defined purposes coincided with the deepening of the feeling against slavery; and a great outcry arose in England when in 1875 it was discovered that the British Admiralty had issued a circular directing captains of the Queen's ships to surrender fugitive slaves who came on board their vessels in the territorial waters of states which authorize slavery. The Government appointed a Commission to investigate the subject; and, after receiving its report, withdrew the first circular and published a second, which directed naval officers in the circumstances 1 Statement issued by the Department of State, Nov. 12, 1893. 2 Report of the British Fugitive Slave Commission, 1875. just described not to receive a slave on board unless his life was in manifest danger, and not to keep him on board after the danger was passed, but to entertain no demand for his surrender nor enter into any examination as to his status.1 This placed the larger part of the burden of responsibility on the captains who had to deal with the cases; but it made clear the adhesion of Great Britain to the doctrine of the immunity of the public vessel from local authority, which had been strenuously maintained by the international lawyers who were members of the Commission and as strenuously denied by their colleagues. Though a state is forbidden, except in the cases we have enumerated, to execute its laws on board foreign men-of-war lying in its harbors, it is not left without remedies if it deems itself aggrieved by the proceedings of such vessels. It can demand the extradition of the fugitives, it can complain diplomatically, it can order the offending vessel to quit its waters, and it can refuse to receive into its ports in future any public vessels of the same nationality. The immunities of which we have been speaking do not follow the members of the ship's company when they land. In their ship and in its boats, which are appurtenant to it and share its privileges, they are exempt from the local jurisdiction; but the moment they set foot on shore they come under the authority of the state, and may be arrested and tried like other foreigners if they commit crimes or create disturbances. § 131. The remaining exception from ordinary rules with regard to territorial jurisdiction occurs in the case of Subjects of Western states resident in Eastern countries. It rests on special agreement, and not, like those we have been considering hitherto, on the common law of nations. 1 British Fugitive Slave Circular of Dec. 5, 1875, § 93 C. |