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unduly harsh or oppressive or unjust treatment during arrest, detention, trial or imprisonment, whether the accused was guilty or not; unnecessarily long detention or undue or needless delay in trial;2 a punishment disproportionate in severity to the offense charged; a violation of municipal law or treaty; lack of jurisdiction on the

3

Aug. 26, 1900, For. Rel., 1902, App. I; Col. Lloyd Aspinwall (U. S.) v. Spain, 1870, Moore's Arb. 1007, 1014; Good Return (U. S.) v. Chile, Dec. 6, 1873, ibid. 1466 (note); Phare (France) v. Nicaragua, Oct. 15, 1879, ibid. 4870; Lottie May (Gt. Brit.) v. Honduras, March 20, 1899, For. Rel., 1899, 371; Masonic (U. S.) v. Spain, Feb. 28, 1885, Moore's Arb, 1055, 1062. See also Moore's Dig. VI, §§ 1011–1012.

But an arrest or detention, even though charge is not proved, gives rise to no claim unless there is evidence of malice or lack of probable cause or disregard of due process of law. Borden (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 3261–3265; Horatio (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3026.

1 Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3235-3240; Gahagan (U. S.) v. Mexico, ibid. 3240; Bolles & Christian (U. S.) v. Mex., Mar. 3, 1849, ibid. 3242; Barnes (U. S.) v. Mexico, July 4, 1868, ibid. 3247; Nautilus, etc., Co. (U. S.) v. Mexico, ibid. 3251; Griffin (U. S.) v. Spain, Feb. 12, 1871, ibid. 3252; Cabias, ibid. 3253; Edwards, ibid. 3268; Strong, ibid. 3269; McKeown, ibid. 3311; Powers, ibid. 3274; Van Bokkelen (U. S.) v. Haiti, May 24, 1888, ibid. 1807. Cases before Spanish Treaty Claims Com., Final Report, May 2, 1910, p. 14.

Mr. Buchanan, Sec'y of State, to Mr. Campbell, Dec. 11, 1848, Moore's Dig. VI, 274 (holding U. S. citizen "incommunicado" in Cuba); Mr. Conrad, Acting Sec'y of State, to Mr. Peyton, Oct. 12, 1852, Moore's Dig. VI, 275 (refusal to hear testimony on behalf of defendant). Cases of U. S. citizens arrested in Guatemala, For. Rel., 1894, 302-315 (not served with warrants or informed of charges against them; not permitted to see consul's messenger; gross irregularities in procedure). Sol. Gen. Richards, Feb. 7, 1898 in case of Culleton (U. S.) v. Colombia, 22 Op. Atty. Gen. 32; Baty, op. cit., 118-122, and Moore's Dig. VI, § 1012.

2 Rahming, Eneas and Binney (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3282; Nautilus, etc., Co. (U. S.) v. Mexico, July 4, 1868, ibid. 3251; Barnes (U.S.) v. Mexico, ibid. 3247; Mr. Bayard, Sec'y of State, to Mr. Ryan, min. to Mexico, June 28, 1890, Moore's Dig. VI, 281.

1 Baldwin (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 3235–3240; Halstead (U. S.) v. Mexico, July 4, 1868, ibid. 3243; Montgomery (U. S.) v. Spain, Feb. 12, 1871, ibid. 3272; Le More (France) v. United States, Jan. 15, 1880, ibid. 3313.

Molière (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 3252; Reading (Gt. Brit.) v. U. S., May 8, 1871, ibid. 3283, 3285; Brito (U. S.) v. Spain, Feb. 12, 1871, ibid. 3252; Jones (U. S.) v. Spain, ibid. 3253 (excessive bail); De Luna (U. S.) v. Spain, ibid. 3276; Lowe (U. S.) v. Spain, ibid. 3270; Montejo (U. S.) v. Spain, ibid. 3277; Mevs case v. Haiti, For. Rel., 1893, pp. 358, 378, 381; Master of Russian bark Hans v. U. S., President's message, Dec. 5, 1898, For. Rel., 1898, lxxxi, 31 Stat. L. 1010; Van Bokkelen v. Haiti (imprisonment in violation of treaty) Moore's Dig. VI, § 1013. Cases before Spanish Treaty Claims Commission, Final Report, 14.

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part of the trial court, or in general a denial of justice. A detention and discharge without trial throws the burden on the government to show due process of law, and in the absence of such proof, international tribunals have allowed damages. While military law, operating in time of war only, gives military officers and courts a greater discretion in the matter of arrest, detention and imprisonment than is accorded to civil authorities in time of peace, they must nevertheless comply with the requirements of due process of law. Treaties usually provide for due process of law in the litigation, civil or criminal, to which the respective citizens of the contracting states are parties, by stipulating for free access to courts, formal charges, an opportunity to be heard, to employ counsel, to examine witnesses and evidence, and a guaranty of essential safeguards against a denial of justice. In the absence of unduly harsh or arbitrary treatment by an authority of the state, claimants are expected to resort to their local remedies against the persons, often minor police officers, who have been guilty of the wrongful arrest or false imprisonment.

5

The decision of a foreign tribunal against a citizen of the United States on criminal charges will only be protested against on the following broad grounds:

"(1) Undue discrimination against the petitioner as a citizen of the United States in breach of treaty obligations, or

"(2) Violation of those rules for the maintenance of justice in judicial enquiries which are sanctioned by international law."

1 Carmody (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3287; Le More (France) v. U. S., Jan. 15, 1880, ibid. 3313; and other cases in Moore's Arb. 3280 et seq. 2 Infra, § 129.

3 Stovin (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3283; Canty (Gt. Brit.) v. U. S., ibid. 3309; Barnes (U. S.) v. Mexico, July 4, 1868, ibid. 3247.

4 See cases reported in Moore's Arb. 3265 et seq.; see especially the elaborate dissenting opinion of Aldis, commissioner, in the French-United States commission of January 15, 1880, in Dubos' case, Moore's Arb. 3323 et seq. The same rule prevails in cases of martial law. Moore's Dig. II, § 196; VI, §§ 1016–1017; Howland's Digest of Opinions of Judge Advocates General, 1078-1081.

5 Oberlander & Messenger (U. S.) v. Mexico, March 2, 1897, For. Rel. 1897, 382, 388. Warren's case, Moore's Dig. VI, 661; case in England, ibid., 670; Waller's case, ibid., 670; cases in Honolulu, ibid., 671, and other cases, ibid., § 987.

Mr. Bayard, Sec'y of State, to Mr. Morrow, February 17, 1886, Moore's Dig. VI, 280; II, 92.

As a general rule, it may be said that the right to protest against legal proceedings abroad and even against errors of foreign courts can only be based upon an allegation of a denial of justice. Mr. Marcy expressed this principle as follows:

"If a native-born citizen of the United States goes into a foreign country and subjects himself to a prosecution for an offense against the laws of that country, this Government can not interfere with the proceedings, nor can it claim any right to revise or correct the errors of such proceedings, unless there has been a willful denial of justice, or the tribunals have been corruptly used as instruments for perpetuating wrong or outrage." 2

The willingness of foreign governments to permit this practically unrestricted jurisdiction to be exercised by local courts over their citizens abroad is predicated upon the existence of certain conditions:

1. The existence of regular courts and of laws assuring to the alien the administration of civilized justice, on terms of equality with nationals.

2. The independence of the courts, and an assurance of their impartiality and good faith.

3. The justiciability of the case before the law courts.

4. The competency of the courts and their inclination to pass upon the case without unnecessary delay.

5. Respect of the local government for the decisions of its own courts.3

To the general rule that the criminal jurisdiction of a state is limited to offenses committed within its territory, or if committed abroad, to offenses of its own citizens, certain states by municipal law have made important exceptions by undertaking to punish aliens for crimes committed abroad. The pretension to this jurisdiction lacks both a territorial basis in the locality of the crime and a personal basis in the nationality of the accused. It is disapproved by the United States and Great Britain, and in 1886 the attempt of Mexico to en

1 As will be seen hereafter (infra, § 127 et seq. doubt and uncertainty arise only in the application of the rule.

Mr. Marcy, Secretary of State, to Baron de Kalb, July 20, 1855, Moore's Dig. IV, 11.

3

Leval, G. de, La protection diplomatique, Bruxelles, 1907, pp. 93–98.

force it in the Cutting case became the subject of a sharp diplomatic controversy. The claim to such jurisdiction, which in some form is found in the penal codes of most civil law countries, is founded upon the relation between the offense and the welfare of the state or its nationals, so that self-defense is by these countries invoked in its support. Most of them undertake to prosecute aliens who, while abroad, have committed crimes against the safety of the state or have counterfeited its seal or currency.2 Only a few go so far as to punish crimes committed abroad against subjects of the state, which assertion of extraterritorial jurisdiction is too extensive to command general acquiescence.

Extradition treaties exemplify the mutual coöperation of states to prevent offenders from escaping the penalty of crime by departure from the territorial jurisdiction.

§ 43. Limitations upon Territorial Jurisdiction-Extraterritoriality. There is also an exception, in the case of certain oriental countries, to the rule that aliens are under the complete territorial jurisdiction of the state of residence. Owing to the deficient civilization of these countries and fundamental differences in law and social habits, the countries of European civilization have stipulated for a certain exemption for their citizens from the operation of local law. This con

1 Cutting was finally released (though Mexico contested the right of the United States to interpose in his behalf), because the Mexican plaintiff withdrew his action for libel, committed in the United States.

On the Cutting case, see Mr. Moore's able “Report on extraterritorial crime," Washington, 1887, which contains an exhaustive discussion of the whole subject. See also Moore's Dig. II, §§ 200-202; Rolin in 20 R. D. I. (1888), 559; Hall, 207; Westlake, I, 261-263; Oppenheim, I, 203–205.

2 E. g., France, Germany, Austria, Belgium, Netherlands, Switzerland, Hungary, Italy, Luxemburg, Greece, Norway, Sweden, Russia, Spain and Brazil; but not Denmark, Portugal or Great Britain. Moore's Dig. II, 258; Hall, 207-208. The Institute of International Law approves this legislation, but adds to the condition that the "acts contain an attack upon [the state's] social existence or endanger its security," the further condition "when they are not provided against by the criminal law of the territory where they take place." 7 Annuaire, 156-157.

3 E. g., Greece, Mexico and Russia and under various conditions and limitations, Austria, Hungary, Italy, Brazil, Sweden and Norway. This was the question involved in the Cutting case.

dition is called extraterritoriality. By treaty or custom these countries have surrendered a considerable portion of their jurisdiction over aliens to the states of European civilization, who exercise jurisdiction over their own nationals by courts and authorities established and regulated by their own municipal legislation.1 Jurisdiction is usually exercised by the consuls or diplomatic officers of the foreign states and, except in Turkey, it is customarily confined to persons of their own nationality. While the system in practically all of the extraterritorial countries rests upon treaty, in the Ottoman empire it is based upon custom and certain treaties called Capitulations.2 This explains the fact that consuls of treaty powers in Turkey may exercise jurisdiction and grant protection to nationals of other treaty powers or even of non-treaty powers, which in other extraterritorial countries they cannot do.3 The countries still under extraterritoriality, from which class Japan has only recently emerged, are China, Morocco, Muscat, Persia, the Barbary states, Siam, Egypt, Turkey, Bulgaria, and a

1 The statutes of the United States began with the act of August 11, 1848, 9 Stat. L. 276. The statutes are now consolidated in §§ 4083–4130, Revised Statutes. See Moore's Dig. II, 613 et seq.; U. S. Consular Regulations (1896), §§ 612–653; Instructions to Diplomatic Officers of the U. S. (1897), §§ 200-240, p. 79 et seq. In Great Britain, foreign jurisdiction is now governed by the Foreign Jurisdiction Act of 1890, 53 & 54 Vict. c. 37. See Piggott, F., Exterritoriality, Hong Kong, 1907; Hall, Foreign powers and jurisdiction, § 59 et seq. The treaty provisions of the U. S. are found in Moore, Extradition, Boston, 1891, I, 100, note 5; the British treaty provisions in the Appendix to Piggott, op. cit., 273 et seq.

* Pelissié du Rausas, G., Le régime des capitulations dans l'Empire ottoman, 2d ed., Paris, 1910-11, 2 v.; Arminjon, P., Étrangers et protégés dans l'Empire ottoman, Paris, 1903; Rey, F., De la protection diplomatique et consulaire dans les échelles du Levant et de Barberie, Paris, 1899; Uber die Exterritorialität der Ausländer in der Türkei mit Rücksicht auf die Gerichtsbarkeit in Civil und Strafprozessen, by F. Meyer. 1 Jahrbuch für Rechtswissenschaft, 1895, pp. 95–190; Turkish capitulations and the status of British and other foreign subjects residing in Turkey, 21 Law Quar. Rev. (1905), 408-425; Hinckley, Frank E., American consular jurisdiction in the Orient, Washington, 1906; Brown, Philip M., Foreigners in Turkey; their juridical status, Princeton, 1914. Consular jurisdiction in the Levant and the status of foreigners in the Ottoman law courts, by Travers Twiss, 8th Annual Conference (1880) of the Asso. for the reform and codification of the law of nations, 27-51. Les étrangers devant les tribunaux consulaires et nationaux en Turquie, by E. R. Salem, 18 Clunet (1891), 393–425; 795-809; Moore's Dig. II, 662 et seq.

* Moore's Dig. II, 596 et seq.; Maria Luz (Peru) v. Japan, Emperor of Russia, arbitrator, Moore's Arb. 5034-5036; For. Rel., 1873, I, 524–553.