In the absence of treaty

When a ship enters foreign waters, that is, within one marine league more or less from the shore, it becomes at once, with all on board, subject to the municipal laws of the country its visits, and this, for the reason that such waters are within the exclusive jurisdiction of a nation, and are territorial. The ship is no longer upon the high seas. It voluntarily subjects itself to the laws and regulations imposed by the foreign sovereign, and, in turn, is entitled to such protection as the sovereign usually extends to such vessels. The ship is as much within the territory of that country as though it were tossed by the waves upon its shores. It is upon the same footing as an alien, who, upon reaching the territory of another country, is bound to observe its laws and customs.

A private vessel, when it arrives in a foreign port ceases to be regarded as territory, unless treaty provides otherwise, and then becomes merely the property of aliens."

48

high sea" as synonymous, L.

After using open sea" and "high sea" Oppenheim says,

Private vessels are only considered as though they were floating portions of the flag state in so far as they remain whilst on the open sea in principle, under the exclusive jurisdiction of the flag state.

50

In America, criminal laws have been held to have no extraterritorial force and effect, and are to be strictly construed." We are not considering either the status of certain privileged persons, consular courts and war vessels in a foreign jurisdiction, nor the immunity of citizens of western countries within eastern domains.

If any possible construction can be placed on criminal statutes which will prevent their operation within the territory of another sovereign state, such construction should govern. It is safe to presume that they were intended to operate only inside the nation enacting them.

48 Woolsey: International Law, p. 81; Schooner Exchange v. McFadden, 7 Cranch 116, 144. 1812; Gibbons v. Ogden, 9 Wheat. 194. 1824; Mason v. Int. Tr. Co., 197 Mass. 349; Taylor: International Law, p. 312, sec. 269. 1901. 49 International Law, vol. 1, p. 318.

50 Cases cited in U. S. Sup. Ct. Dig. L. Ed. New, vol. 5, pp. 5397-5401. See Editorial, this JOURNAL, 2:845, referring to the Cutting Case.

Crimes, in a legal sense, are local, and are so only because the acts constituting them are declared to be so by the laws of the country where they are perpetrated.51

We hold that the criminal jurisdiction of a nation is limited to its own dominions and to the vessels under its flag on the high seas, and that it cannot extend it to acts committed within the dominion of another without violating its sovereignty and independence.

52

In the United States the territorial principle is the basis of criminal jurisprudence and the place of the commission of an offense is generally recognized as the proper and only place for its punishment.53

All crimes are, at common law, in a general phase, local. That is, no person can be convicted of them only in the country where committed.5* American and English authorities agree that penal law is territorial.55 While it does not seem contrary to the law of nations for power to extend its jurisdiction as to certain matters over its own citizens residing or traveling in foreign territory, it is contrary to the policy of the United States to extend its jurisdiction to crimes there committed. The rule adopted by England is identical, excepting treason, bigamy, and premeditated murder. As to crimes the continental rule is different. It there operates to keep away from the home country, or bring to justice upon return, political offenders who can not be extradited.

The better opinion of jurists seems to oppose even the doctrine of concurrent criminal jurisdiction. The true test of jurisdiction is a concurrence of a criminal act, a breach of a local law, a present power to make an arrest, and a competent tribunal to try the offender. Crime is a derogatory force primarily blighting the locality where committed. Incidentally it entails far-reaching results. Analyzed, the act creates the violation rather than the person putting the act in operation.

In three notable instances the doctrine of strict territorial jurisdiction has met signal opposition.

51 Mr. Calhoun, Secretary of State, to Mr. Everett, Aug. 7, 1844.

52 Mr. Calhoun, Secretary of State, to Mr. Everett, Sept. 25, 1844. Moore: International Law Dig., vol. II., p. 225 et seq. Also pp. 855 to 859.

53 Moore: International Law Dig., vol. II., p. 263.

54 Bishop on Criminal Law, vol. 1, p. 467, sec. 552.

55 Wilson and Tucker: International Law, p. 131. 1901.

I. Daniel Webster, when Secretary of State, advanced radical views as to what should be the rights of the United States merchant marine in foreign waters. He asserted that

the laws of a nation accompany her ships not only over the high seas but into ports and harbors.56

The exact question under discussion was whether a vessel which was forced from its course by stress of weather or misfortune was subject to the local jurisdiction of the port of refuge. Webster would have looked in vain for precedent upon which to base his contention. His views amounted to no more than a theory of a state's sovereignty and supremacy. It was an innovation and was so considered by

contemporary statesmen and writers.

II. The second instance referred to was the decision handed down in the case of United States v. Rodgers, which has heretofore been partially considered. In upholding the Webster contention, the court was compelled to make an exception to the rules of international law to give the United States court jurisdiction. Mr. Justice Field said:

It is true * that as a general principle, the criminal laws of a nation do not operate beyond its territorial limits. * * We accept this doctrine as a general rule, but there are exceptions to it as fully recognized as the doctrine itself. One of those exceptions is that offenses committed upon vessels belonging to citizens of the United States within their admiralty jurisdiction, (that is, within navigable waters) though out of the territorial limits of the United States, may be judically considered when the vessel and parties are brought within their territorial jurisdiction. (p. 264).

The vessel was not in port, but was merely passing through the territorial waters of the Dominion of Canada. In that case the court virtually held that the criminal statutes of the United States were in force on all waters where the United States had admiralty jurisdiction; that the Canadian division of the Great Lakes was within the admiralty jurisdiction of the United States; that the Great Lakes were high seas within the meaning of the federal crimes act. The reasons, however, given by the majority court for holding the Great

56 Moore: International Law Dig., vol. II., p. 354.

Lakes to be "high seas are broader, in terms, than a mere construction of the statute under consideration necessitated. The court held that from the very nature of the waters, and the surrounding natural conditions, they were high seas. As we have seen, the transition was gradual from lakes, public waters, inland seas, to high seas. The court altered their time-honored status and then applied the criminal statute.

As a result of the decision the whole jurisdiction of the Great Lakes underwent a change. Here are the results:

(a) Canada lost absolute jurisdiction over crimes committed on American vessels in her own waters. Thus, the principle laid down by J. Marshall in Exchange v. McFadden, that any restriction upon the absolute sovereignty of a nation over its land or water must come from that nation itself, is defied.

(b) The United States acknowledged jurisdiction over waters within which it has no right to make an arrest.

(c) The riparian states lost jurisdiction over crimes committed aboard vessels "on a voyage on a voyage" within their own boundaries. When the Great Lakes and their connecting waters became "high seas," that moment the states lost jurisdiction.

(d) Criminal laws were given extraterritorial force.

(e) The term "high seas" lost its one true meaning as used in international law, became obscure and susceptible of several interpretations.

(f) The foundation was laid for the extension of federal jurisdiction over fisheries in the American division of the Great Lakes.

For many years, the only instance where the federal courts had jurisdiction of a crime committed in foreign waters was where an inhabitant of an American ship committed a crime against the person or property of another, and when the foreign government disclaimed, or declined to exercise jurisdiction.57

The law seems well expressed by our Supreme Court:

Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and,

if need be, the offenders punished by the proper authorities of the local jurisdiction.58

The court stated that the true test is not alone the publicity of the act. If the act be of such gravity that it would awaken public interest if known, it is for the local authorities. Under that test, an offense of any gravity committed upon a foreign ship in territorial waters is subject to local jurisdiction, whether the vessel be stationed in the harbor or merely passing through such waters. It is hard to imagine an offense, which, if known in any port town, would not awaken public interest. The rule established in the Wildenhus case is certainly set at defiance when the United States claims jurisdiction of an offense which does not concern merely the internal workings of the ship committed upon an American vessel in Canadian waters.

There is no reason for any distinction between the immunities of a ship in the act of using its right of innocent passage, and of a ship at rest in the harbors of the state. 59

What difference could it possibly make whether Rodgers spent his years behind an American or an English lock? Why could not the United States have turned Rodgers over to the Canadian authorities for punishment, according to the practice in such cases made and provided? A nation may as well claim jurisdiction of offenses committed by its citizens on foreign vessels on the high seas as of those within the acknowledged and fixed territorial limits of a foreign nation.

III. The Institute of International Law, the following year (1894), passed an article which would seem to be in partial accord with the Webster doctrine.

Crimes and offenses committed on board foreign ships passing through the territorial sea, by persons on board of them, against persons or things on board the same ships, are as such, outside the littoral state, unless they involve a violation of the rights or interests of the littoral state or of its subjects not forming a part of the crew or passengers (article 6).60

58 Wildenhus' Case, 120 U. S. 1, 18. 1886.

59 Hall:

International Law, p. 201, 3rd ed. 1890; Taylor agrees with HallTaylor: International Law, p. 308, sec. 263. 1901.

60 Moore: International Law Dig., vol. I., p. 701.