of the local tribunals and authorities in both cases, and Chap. II. assigned the following reasons for its decision: "Considering that a neutral vessel cannot be indefinitely regarded as a neutral place, and that the protection granted to such vessels in the French ports cannot oust the territorial jurisdiction, so far as respects the public interests of the State; that, consequently, a neutral vessel admitted into the ports of the State is rightfully subject to the laws of the police of that place where she is received; that her officers and crew are also amenable to the tribunals of the country for offences and torts (p) committed by them, even on board the vessel, against other persons than those belonging to the same, as well as for civil contracts made with them; but that, in respect to offences and torts committed on board the vessel, by one of the officers and crew against another, the rights of the neutral power ought to be respected, as exclusively concerning the internal discipline of the vessel, in which the local authorities ought not to interfere, unless their protection is demanded, or the peace and tranquillity of the port is disturbed; the Council of State is of opinion that this distinction, indicated in the report of the Grand Judge, Minister of Justice, and conformable to usage, is the only rule proper to be adopted, in respect to this matter; and applying this doctrine to the two specific cases in which the consuls of the United States have claimed jurisdiction; considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other case was that of a severe wound inflicted by the mate of the American ship Sally upon one of the seamen, for having made use of the boat without leave; is of opinion that the jurisdiction claimed by the American consuls ought to be allowed, and the French tribunals prohibited from taking cognizance of these cases" (q). (P) The term used in the original is délits, which includes every wrong done to the prejudice of individuals, whether they be délits publics or délits privés. (2) Ortolan, Règles Internationales de la Mer, tome i. pp. 293–298. Appendice, Annexe H. p. 441. Part II. $103a. Distinction between public and private ships. § 103b. Doctrine of exterritori ality. Case of John Opinion of Opinion of C. J., on the Mr. Wheaton, in a notice of Ortolan's work, came to the conclusion that the French law established the true rule, and was most in conformity with the practice of nations (r). A ship of war and a private merchant vessel cannot both claim the same immunities. As has already been stated, it is doubtful whether a ship of war may not be proceeded against in some cases, but it is beyond doubt that merchant vessels are always liable to be sued in a local court. It is also a separate point how far a local court may exercise jurisdiction over acts done or persons found on board a public or a private ship. It has been laid down by many writers that a ship of war is in all respects a portion of the territory of the State to which she belongs, and that when in the waters of another State not only is the vessel herself exempt from the local law, but the exemption extends to all persons and things on board her(s). Although this doctrine of exterritoriality has been very widely received, there is a great weight of authority against it. In the case of John Brown, a British subject, who was imprisoned by the Spaniards at Callao in 1819, for assisting in a Peruvian revolt, and who escaped on board a British ship of war then in the port of Lima, Lord Stowell, on being asked his opinion as to whether Brown ought to have been delivered up to the Spanish authorities, replied "that individuals merely belonging to the same country with the ship of war, are exempted from the civil and criminal process of the country in its ordinary jurisdiction of justice by getting on board such ship, and claiming what is called the protection of its flag, is a pretension which, however heard of in practice occasionally, has no existence whatever in principle" (t). In accordance with this opinion Lord Castlereagh directed the English minister in Spain to disavow the act of the captain of the ship of war in not delivering up John Brown. In 1794, the opinion of Mr. William Bradford, the United States Attorney-General, was taken, as to whether a writ of habeas corpus would go to bring up a subject illegally detained on board a foreign ship of war. He replied that although he could find no instance of this having been done, he was of opinion that a writ might be legally awarded in such a case, and that the commander of the foreign ship of war could not claim to be exempt from the jurisdiction of the State where he happens to be (u). Lord Chief Justice Cockburn, in criticising the case of The Exchange, allows the exemption of a ship of war "if restricted to the ship itself, (") Revue de Droit Français et Étranger, vol. ii. p. 206. Wheaton, by Lawrence, p. 191. (s) Historicus, Times, Nov. 4th, 1875. Italy and Germany maintain this exterritoriality. See Report of Royal Commission on Fugitive Slaves, 1876, p. 7, where the subject is fully discussed. This Report is a most valuable contri bution to international law, and well repays the most careful reading. (t) Report of Royal Commission on Fugitive Slaves, 1876, p. 77. (u) Opinions of Attorneys-General, vol. i. p. 25. See also ibid., pp. 27, 54, 56. U. S. Papers on Foreign Affairs, vol. i. p. 446. which was all the Court had to deal with." But as regards those on Chap. II. board, his Lordship adds, that "inasmuch as the crew may commit exemption of offences against the local law, which the ship, being an inanimate public ships. thing, cannot, it cannot be equally implied that the local sovereign has consented that if they violate the local law they shall enjoy immunity from its penalties." It is admitted that they are liable to be arrested for offences against the local law committed on shore, why therefore "should they be exempt because they get back to the ship before they are taken? And à fortiori, why should a person living under the local law, as a subject of the local State, be able to withdraw himself from the operation of that law by getting on a ship which, but for this alleged exterritoriality, would clearly be within the jurisdiction? Is it necessarily to be implied that, because by the comity of nations the ports of every State are open to the ships of war of other States, the local sovereign has assented to his law becoming powerless in respect of crime committed within its jurisdiction in case the criminal can get on board a foreign ship lying in its waters? Has this country ever assented to this doctrine? Is it prepared to do so now? Can any instance be cited in which a criminal has been allowed to escape because he found his way to a foreign ship of war? Certainly none such has been brought to our knowledge." This opinion was delivered on the question as to what course an English naval commander was to pursue, when a slave escaped on to his vessel, while she was in the waters of a State that permitted slavery. After reviewing all the leading authorities on this subject, Rule laid the Lord Chief Justice arrived at the conclusion that, "The rule which down by Cockburn, reason and good sense would, as it strikes me, prescribe, would be C. J. that, as regards the discipline of a foreign ship of war, and offences committed on board, as between members of her crew towards one another, matters should be left entirely to the law of the ship, and that should the offender escape to the shore, he should, if taken, be given up to the commander of the ship on demand, and should be tried on shore only if no such demand be made. But if a crime be committed on board the ship upon a local subject, or if, a crime having been committed on shore, the criminal gets on board a foreign ship, he should be given up to the local authorities. In whatever way the rule should be settled, so important a principle of international law ought not to be permitted to remain in its present unsettled state" (x). § 103c. There is, no doubt, a distinction between a criminal going on board Criminals and a ship of war, and a slave escaping to it from his master. Neverthe- fugitive less, from an international point of view, to protect either is a violation of the rights of the local sovereign. The law of England, as is shown further on, recognizes the existence of slavery in some countries, and consequently the rights of slave-owners in such countries must be respected. To assert that a slave, by coming on board a ship of war while she is in the waters of a slave-owning State immediately becomes (x) Report of Royal Commission on Fugitive Slaves, 1876, pp. 37, 43. slaves. Part II. § 103d. Merchant vessels in foreign ports. § 103e. Case of The a free man, is equivalent to asserting that a slave-owner's rights will not be regarded, and is tantamount to making the State to which the ship of war belongs, pass judgment on the laws of a foreign and independent State. The question cannot be confined even to criminals or slaves. England has abolished imprisonment for ordinary debt, but when her ships of war are in a State that incarcerates debtors, is a debtor to escape by going on board an English ship of war? No State would submit to such a pretension. But the case of a slave and a debtor are very similar, so far as the ship of war is concerned. Each claims the protection of its flag from a liability imposed by the local law, and it is not for the commander, by protecting either, virtually to decide whether the local law is a proper or an improper one. A merchant vessel is not in the same position as a ship of war. Every State claims to exercise jurisdiction over its own merchant vessels wherever they are, and even when they are in the waters of another State. But when in a foreign port they must also obey the laws of the country to which the port belongs (y). They are thus at the same time subject to two concurrent systems of law. Any State may decline to exercise jurisdiction over foreign merchant vessels in its harbours to whatever extent it pleases, as is the case with France; but the right nevertheless exists, and might be resumed on due notice being given. Thus, a claim by the local officers of France to board the ship, search her, and take out of her any one who has become amenable to the local laws, could not lawfully be resisted or disputed after such due notice (z). A peculiar case arose in 1841. The brig Creole, an American merchant vessel, sailed from a port in Virginia with 135 slaves on board. On the high seas some of the slaves rose, and took possession of the vessel, killing a passenger, and wounding the captain and several of the crew. They compelled the mate to navigate the ship to Nassau. On arrival there the local authorities, at the request of the American Consul, arrested such slaves as were proved to have committed acts of violence, and the rest escaped to the shore, but whether with connivance of the local authorities or not did not appear. The United States demanded that those who had gained the shore should be restored, but this was refused by Great Britain, on the ground that they could not be seized while they had committed no crime within British jurisdiction. The matter was finally referred to an arbitrator, who awarded a pecuniary indemnity to the American owner for the loss of his slaves (a). The difficulty of this case arises from the fact that (y) R. v. Anderson, L. R. 1 C. C. R. 161; R. v. Sattler, D. & B. C. C. 525; R. v. Lesley, 1 Bell, C. C. 220; Wildenhus' Case, 120 U. S. 1. Boyd, The Merchant Shipping Laws, p. 438. (z) Report on Fugitive Slaves, 1876, p. 26. (a) Report of Decisions of Commissions under Convention of 1853, p. 242. See also Wheaton, by Lawrence, p. 206; by Dana, p. 166. Hansard, Parl. Debates (Lords), vol. lx. p. 318. the Creole entered the port of Nassau under duress, and against the Chap. II. will of her owners and master. Yet it can hardly be maintained that even under such circumstances the local authorities were bound to try and prevent the slaves from going on shore. The ship was within British dominions, and the slaves when trying to escape, violated no British law; but, on the contrary, were endeavouring to dissolve a tie looked upon with abhorrence by British law. The arrest of those who had committed acts of violence rested on a different ground. They were seized, not because they had endeavoured to regain their liberty, but because they had committed piratical acts (6). $104. public or from the local jurisdiction does not extend to aggression Whatever may be the nature and extent of the exemp- Exemption of tion of the public or private vessels of one State from the private vessels local jurisdiction in the ports of another, it is evident that this exemption, whether express or implied, can never be construed to justify acts of hostility committed justify acts of by such vessel, her officers, and crew, in violation of the against the law of nations, against the security of the State in the State. whose ports she is received, or to exclude the local tribunals and authorities from resorting to such measures of self-defence as the security of the State may require. This just and salutary principle was asserted by the French Court of Cassation, in 1832, in the case of the private Sardinian steam-vessel, The Carlo Alberto, which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents, with the view of exciting civil war in that country, put into a French port in distress. The judgment of the Court, pronounced upon the conclusions of M. Dupin ainé, Procureur-Général, reversed the decision of the inferior tribunal, releasing the prisoners taken on board the vessel, upon the following grounds: 1. That the principle of the law of nations, according to which a foreign vessel, allied or neutral, is considered as forming part of the territory of the nation to which it belongs, and consequently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally, (b) See Calvo, Droit International, vol. ii. §§ 269, 550. security of |