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amended as to authorize the Secretary of the Treasury to designate the months of the year in which seals might be taken for their skins, as well as "the number to be taken." In 1890, pursuant and subject to the laws of the United States, a lease was made to the North American Commercial Company of the exclusive right for twenty years to take seals on the islands, the company agreeing to “abide by any restrictions or limitations upon the right to kill seals that the Secretary of the Treasury shall judge necessary, under the law, for the preservation of the seal fisheries of the United States.” In accordance with the stipulations of the modus vivendi between the United States and Great Britain, of April 18, 1892, entered into for the purpose of restricting the killing of seals during the arbitration under the convention of February 29, 1892, the number of skins which the company was allowed to take during the season of 1893 was reduced to 7,500. The company claimed damages from the United States for the skins which, as it alleged, it might have taken without unreasonable injury of or diminution of the seal herd, but was prevented by the United States from taking. The court, in denying this claim, observed: “ The seal fisheries of the Pribiloff Islands were a branch of commerce and their regulation involved the exercise of power as a sovereign and not as a mere proprietor. Such governmental powers can not be contracted away, and it is absurd to argue that in this instance there was any attempt to do so, or any sheer oppression or wrong inflicted on the lessee by the Government in the effort to protect the fur seal from extinction."

North American Com, ('0. 1. United States (1898), 171 U.S. 110, 137.

(2) DIVISION OF AUTHORITY.

$ 176.

Under the Constitution of the United States a statute of a State enacting that the masters and wardens of a port within it should be entitled to demand and receive, in addition to other fees, the sum of $5, whether called on to perform any service or not, for every vessel arriving in that port, is a tonnage tax, and is unconstitutional and void.

Steamship Company v. Port Wardens, 6 Wallace, 31.

It has also been held that while taxes levied by a State upon vessels owned by its citizens as property, and based on a valuation of the same, are not prohibited by the Federal Constitution, yet taxes cannot be imposed on them by the State - at so much per ton of the registered tonnage." Such taxes are within the prohibition of the Constitution that "no State shall, without the consent of Congress, lay any duty of tonnage.” Nor is the case varied by the fact that the vessels were not only owned by citizens of the State, but exclusively engaged in trade between places within the State.

State Tonnage Tax Cases, 12 Wallace, 204.

Any duty, or tax, or burden imposed under the authority of the States, which is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, and which is assessed on a vessel according to its carrying capacity, is a tonnage tax within the meaning of the Federal Constitution, and therefore void.

Cannon v. New Orleans, 20 Wallace, 577.

An offence committed on San Juan Island in 1869, while the island, which was claimed to be a part of Washington Territory, was, pending the settlement of the international boundary, in the joint military Occupation of Great Britain and the United States, was not committed at a place within the “ sole and exclusive jurisdiction ” of the United States, under the crimes act of 1790, but was justiciable in the Territorial courts.

Watts v. United States, 1 Wash. Ter. Rep., N. S., 288; Wats v. Territory,

id. 409. As to State jurisdiction over tide-waters, see 3 Harvard Law Review, 346.

“ The State of Texas has municipal jurisdiction under the law of nations over the Rio Grande to the middle of the stream, so far as it divides Texas from Mexico. This is subject to such international jurisdiction as the United States may have over such waters under the Constitution of the United States, and to the right of the free use by Mexico of the channel."

Mr. Bayard, Sec. of State, to Mr. Bowen, June 12, 1886, 160 MS. Dom.

Let. 462.

Where the United States acquires, with the consent of the legislature of a State, lands within its borders for the purpose of a military reservation, and the State omits to reserve concurrent jurisdiction over the lands so acquired, the Federal jurisdiction is exclusive. Hence it was advised that the sheriff of the county within which a reservation was situated had no authority to enter upon the land for the purpose of serving the process of a State court.

Griggs, At. Gen., Sept. 26, 1900, 23 Op. 254. It was advised that the Postmaster-General of the United States might properly refuse to demand of the insular government of Porto Rico rent for the post-office building at San Juan, which had belonged to the Spanish Government and which came into the pos

H. Doc. 551-vol 2-2

session of the United States with the cession of Porto Rico. It was stated, however, at the same time that the general question whether certain public buildings and structures in Porto Rico were owned by the United States or Porto Rico, and whether various public utilities and functions were to be controlled or exercised by the national or insular government under the treaty with Spain and existing laws, was then under review, to the end that a comprehensive determination of it might be reached. It was added that this question, which fitly required judicial review and decision rather than executive opinion, was not intended to be decided in the present instance.

Knox, At. Gen., Oct. 29, 1901, 23 Op. 571.

3. SERVITUDES.

S 177.

“ It is usual in works on international law to enumerate a list of servitudes to which the territory of a state may be subjected. Amongst them are the reception of foreign garrisons in fortresses, fishery rights in territorial waters, telegraphic and railway privileges, the use of a port by a foreign power as a coaling station, an obligation not to maintain fortifications in particular places, and other derogations of like kind from the full enforcement of sovereignty over parts of the national territory. These and such like privileges or disabilities must however be set up by treaty or equivalent agreement; they are the creatures not of law but of compact. The only servitudes which have a general or particular customary basis are, the above-mentioned right of innocent use of territorial seas, customary rights over forests, pastures, and waters for the benefit of persons living near a frontier, which seem to exist in some places, and possibly a right to military passage through a foreign state to outlying territory. In their legal aspects there is only one point upon which international servitudes call for notice. They conform to the universal rule applicable to “jura in re aliena.' Whether they be customary or contractural in their origin, they must be construed strictly. If therefore a dispute occurs between a territorial sovereign and a foreign power as to the extent or nature of rights enjoyed by the latter within the territory of the former, the presumption is against the foreign state, and upon it the burden lies of proving its claim beyond doubt or question."

Hall, Int. Law, 4th ed. 166.
See, also, $ 219, pp. 623-626.
In a note to the foregoing passage, Hall says: “It is some what more than

doubtful whether any instances of a right to military passage have

survived the simplification of the map of Central Europe." See Fabre (Pierre-Paul), Des Servitudes dans le Droit International

Public; Paris, 1901,

(7) NEUTRALIZATION.

$ 178.

Limitations on national jurisdiction have been created by various agreements for the “ neutralization ” either of whole states or of parts thereof, or of particular bodies or streams of water.

“A state is neutral which chooses to take no part in a war, and persons and property are called neutral which belong to a state occupying this position. The term has in recent times received a larger application. A condition of neutrality, or one resembling it, has been created, as it were, artificially, and the process has been called “neutralization.

“ I. States have been permanently neutralized by convention. Not only is it preordained that such states are to abstain from taking part in a war into which their neighbors may enter, but it is also prearranged that such states are not to become principals in a war. By way of compensation for this restriction on their freedom of action, their immunity from attack is guaranteed by their neighbors, for whose collective interests such an arrangement is perceived to be on the whole expedient. ...

“ II. When persons, things, and places, though in fact belonging to a belligerent state, are invested with immunities to which, as so belonging, they would not be entitled, they are said to be 'neutralized.' .,

“ III. The term “ neutralization 'was used in a very extended meaning with reference to the Black Sea in the Treaty of Paris [1856]. ... By Article XI. ...: 'The Black Sea is neutralized. Its waters and ports, thrown open to the mercantile marine of every nation, are formally and in perpetuity interdicted to the flag of war of either of the powers possessing its coasts, or of any other power. By Article XIII., “the Black Sea being thus neutralized, neither Russia nor Turkey are to establish or maintain upon its coasts any militarymaritime arsenal."

Holland, Studies in Int. Law (1898), 271–275.
With reference to what is stated in the foregoing passage as to the

Black Sea, it should be observed that by the treaty of London of
March 13, 1871, Articles XI. and XIII. of the treaty of Paris of 1856
were abrogated. It was at the same time declared : “ III. The Black
Sea remains open, as heretofore, to the mercantile marine of all
nations.” (IIertslet, Map of Europe by Treaty, III. 1921.)

As to Belgium, the Ionian Islands, Savoy, Switzerland, Luxemburg, the Independent State of the Congo, and formerly Samoa, as · examples of neutralized states, see supra, $ 12, pp. 26–27. It may be observed that by the treaty of May 3, 1815, the free city of Cracow was declared to be independent and neutral. By the treaty of November 6, 1846, however, between Austria, Prussia, and Russia it was annexed to Austria and its independence and neutrality were suppressed.

a See La Neutralité de la Belgique, par Úd. Descamps : Bruxelles et Paris, 1902, pp. X., 639.

As to the neutralization of particular persons, places, or things, it may be observed that it was agreed in the peace of Amiens that Malta should be restored to the order of St. John of Jerusalem and its independence and perpetual neutrality acknowledged under the guarantee of Austria, France, Great Britain, Prussia, Russia, and Spain. This stipulation was not carried into effect and the peace was ended a year later.

Article 26 of the regulations for the free navigation of rivers, forming Annex XVI. to the Vienna Congress treaty of June 9, 1815, provides: “ If it should happen (which God forbid) that war should break out among any of the States of the Rhine, the collection of the customs shall continue uninterrupted, without any obstacle being thrown in the way by either party. The vessels and persons employed by the custom-houses shall enjoy all the rights of neutrality. A guard shall be placed over the offices and chests belonging to the customs." a

The act for the navigation of the Danube, made in 1865 by the European commission, and confirmed by the conference of the powers at Paris in the following year, declares that the staff and works of the commission are to enjoy the benefit of neutrality. By Article VII. of the treaty of London of March 13, 1871, it is provided that all the works and establishments created by the commission “ shall continue to enjoy the same neutrality which has hitherto protected them.”)

In order to increase the guaranties of the free navigation of the Danube, it was provided by Article LII. of the treaty of Berlin of July 13, 1878, that “all the fortresses and fortifications existing on the course of the river from the Iron Gates to its mouth" should “be razed and no new ones erected." By Articles LIII. and LIV. provision was made for continuing the European commission, which was thenceforth to exercise its functions "as far as Galatz in complete independence of the territorial authorities."

The subject of the closure of the Dardanelles and the Bosphorus against ships of war is discussed under the head of “ Straits” in the preceding chapter.

a Hertslet, Map of Europe by Treaty, I. 86.

Holland, Studies in Int. Law, 273; Hertslet, Map of Europe by Treaty; III. 1922.

c Moore, Int. Arbitrations, V'. 4853.

d Supra, 8 134. See also Guizot's Embassy to the Court of St. James, chaps. 6 and 7.

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