the territorial limits of a third country, should not be seized in the latter country." The exception thus suggested is discussed in cases in the next section. It would seem to be strictly confined to the circumstances stated, and not to have been intended to apply to a person merely because he is in transit in the physical sense, as where he enters another port of the country in which he embarked. in 1840 the French packet boat L'Océan, which made regular voyages between Marseilles, the coast of Spain, and Gibraltar, received on board, at her anchorage at Valencia, M. Sotelo, a Spanish ex-minister, who was under prosecution for political offences. The vessel, having put to sea without knowledge of the number and personality of the passengers who had embarked, entered the port of Alicante, where, during the customs and police inspection, M. Sotelo was recognized, seized, taken ashore, and imprisoned. The captain of L'Océan protested against what he described as a violation of his flag, and in vain demanded that his passenger be set at liberty, invoking at the same time the right of asylum and the principle of extraterritoriality. Diplomatic communications on the subject which were exchanged between the Governments of France and Spain established it in the clearest manner that the conduct of the authorities of Alicante was above reproach; that no injury was done to the flag, since the acts in question pertained to an ordinary merchant ship and to a high measure of police executed inside the port; that M. Sotelo, surreptitiously embarked at Valencia, a Spanish port, could have been regularly seized and arrested on L'Océan at another port of the same country; and, finally, that the fact that she had been on the high seas a certain time before entering Alicante could not alter the nature of the act done at the place of departure, and proved at the place of arrival, under the dominion of the same laws and of the same territorial legislation. Calvo, Droit International, 4th ed., I. 569. See, also, Snow, Cases on Int. Law, 147-150; Snow, Lectures on Int. Complaint was made of the arrest by the British authorities in Ireland of a Mr. McManus, on the American vessel N. O. Chase. As there was no allegation that the arrest took place on the high seas, it was presumed that it was made in British waters. If the arrest was made in British territorial waters, the United States, said the Department of State, had no right to demand redress, either under the law of nations or by virtue of any treaty existing between the two countries. In case an American citizen charged with a crime in the city of New York should seek an asylum in a British merchant Diplomatie de la Mer, I. 304. a vessel, our authorities, I presume, would not hesitate to arrest him on board of such vessel whilst she remained within waters under our exclusive and absolute jurisdiction. In such a case the flag of Great Britain would afford no protection against the process of the law." Mr. Buchanan, Sec. of State, to Mr. Jordan, Jan. 23, 1849, 37 MS. Dom. "Your despatch No. 446, of the 10th April last, in relation to an attempted arrest by the Government authorities of Hayti, of passengers on a French mail steamer, has been received. "In reply I have to say it is the opinion of this Government that, without a special relinquishment of its rights by treaty, the Haytian Government has jurisdiction over all persons within its territorial limits, including passengers by mail steamers. A different doctrine, if carried into practice, would operate inconveniently to this Government." Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, May 27, 1876, MS. "Your dispatch No. 44, of the 17th October last, in reference to the escape of a supposed revolutionist on board of a French bark, is received. "It would be impossible to give you any instructions, as you request, with a view to the possibility of such a case happening on an American vessel. As you say that the case in point is without precedent, the probabilities of your being called upon to decide one of the same kind would seem to be remote. Without questioning the propriety of the action or judgment of the French minister in refusing to give up the refugee, I may say that international law does not recognize the right of asylum of foreign legations in any country, and that according to American principles of law a merchant vessel in port is under the authority of the local laws and officials, and that neither a consulate nor a legation would have anything to say in regard to a supposed criminal being taken from a ship. If the person claimed were a foreigner accused of a crime included in extradition treaties, the question as to rights and duties of consular or diplomatic officials would be different. The action of the local authorities and the foreign agents would seem to place this matter on a false extradition basis, which might lead to troublesome complications. It is hoped that no other unpleasant occurrence of the kind may occur, though, in case there should, the Department has no doubt that your good judgment will enable you to deal with the emergency prudently and wisely." Mr. Bayard, Sec. of State, to Mr. Thompson, min. to Hayti, Nov. 3, 1885, "Mr. Goutier [United States consul at Cape Haytian] next refers to the case of the insurgent who took refuge on the French bark Panama, and says that with the Department's instructions in view he would have been much perplexed had the vessel been American, for, says he, it would have been my duty to allow the authorities to go on board and arrest that Haytian insurgent.' And Mr. Goutier goes on to argue that if any other power claims the right of asylum in a given case, the United States could not forego a similar claim without loss of prestige. "As we understand the case of the Panama, the local authorities. applied to the consul for permission to go on board and take the fugitive. In a case which recently arose in Cuba, where application was made to a consul to order the delivery of a person then on board an American vessel in port, who was accused of common crimes, and where the consul, after examining the charge against the person, ordered the captain to deliver him up, this Department held that the consul had no authority to order such surrender. "The application made to the consul converted a proceeding, which otherwise concerned only the domestic administration of justice, into a sort of proceeding in extradition, for which no authority is found in treaty or international law. The consul had no judicial function, and could not assume the character, for the nonce, of an examining magistrate, passing upon the evidence submitted and granting or withholding surrender in his discretion in territory not within the jurisdiction of the United States. He simply had no power, authority or discretion, either to decree a surrender, or to resist the ordinary operation of municipal justice within its own jurisdiction. "Had Mr. Goutier's supposed case occurred, had the insurgent gone on board an American vessel in port and the like application been made to the American consul, it would have been his duty to decline to take upon himself the extraneous responsibility of ordering or aiding, in his official capacity, the surrender of the fugitive. His function in the premises would have been confined to watching that all due forms of arrest, on a judicial warrant, were observed, and that no arbitrary, unlawful or forcible invasion of the vessel occurred, especially in the case of political refugees. "It does not seem pertinent to the present instruction to discuss the ethics of humanity, to which Mr. Goutier adverts. Section 48 of the Department's lately issued personal instructions to its diplomatic agents abroad is abundant evidence that the principles of common humanity, where arbitrary pursuit of merely political offenders is concerned, have not been overlooked in its ruling." Mr. Bayard, Sec. of State, to Mr. Thompson, min. to Hayti, Nov. 7, 1885, It is laid down by the publicists, as a general rule, that the private vessels of a nation, as contradistinguished from its men-of-war, are, on entering the ports of another nation, not exempt from the local jurisdiction. At the same time it is stated that this rule is not absolute and unlimited, but that it is subject to important qualifications, both general and special. The vessels of a nation on the high seas are commonly spoken of as a part of its territory, and this character is not destroyed by their entrance into the port of another nation, although by such entrance they may, to a great extent, also become subject to another jurisdiction. [Here follows a citation of Mr. Webster's note to Lord Ashburton in the case of the Creole, Webster's Works, VI. 306, 307.] "These principles were recently applied by the Supreme Court of the United States in the case of Wildenhus. In that case a murder was committed on board of a Belgian vessel in the port of Jersey City, in the State of New Jersey. The Belgian Government claimed exclusive jurisdiction of the offense under its treaty with the United States. The Supreme Court did not admit this claim, but, holding that the treaty was merely declaratory of the law of nations, said: "The principle which governs the whole matter is this: 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. It may not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way the consul has no right to interfere to prevent it. (Wildenhus's case, 120 U. S., 1, 18.) . . . "Such, then, is the general rule and such are its general limitations. In this relation it may be observed that Calvo states the rule as follows: "To sum up, as regards merchant vessels, for all crimes or offenses committed by seamen, either on board or ashore, against foreigners, or in such a way as to disturb public order or to affect the interests of the country in whose waters the vessel is at anchor, as well as for matters in which the parties interested ask of their own accord the aid and support of the local authorities, the police of the country have an absolute right to pursue the guilty party even on board of the vessel to which he belongs, if he has succeeded in taking refuge there, provided in this latter case they come to an understanding with the consul of the nation interested. (Calvo, Le Droit international, 4th ed., section 471.) "In ordinary cases of arrest of criminals under legal process such concurrent action or permission has been the general practice among the Spanish-American countries, and there are many recent instances in which it has been observed. I am unaware of any reported case where the arrest was made or the demand enforced in the event of a refusal on the part of a representative of the nation to which the vessel belonged to act concurrently or to grant the permission sought. "But the rule is also subject to special exceptions, resting upon consent and secured either by express compacts or by custiom. This principle is so clearly enunciated by Chief Justice Marshall that I will quote that great jurist's statement of it, which is as follows: "This consent may be either expressed or implied. In the latter case it is less determinate, exposed more to the uncertainties of construction, but, if understood, not less obligatory. The world being composed of distinct sovereignities, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in some instances, be tested by common usage and by common opinion growing out of that usage. the schooner Erchange, 7 Cranch, 116.) (Case of "As an illustration of the exceptions that prevail in some places, I may cite the recent case of the British steamer Charles Morand, on which the first officer was, in July, 1889, killed by a sailor, one Peter Lynch, while the steamer was lying in the port of Manzanillo, in the island of Cuba. Notwithstanding the gravity of the offense, the local authorities declined to take jurisdiction of it, and the offender was brought to the city of New York, where he was arrested with a view to extradition. The case was duly examined by judicial authority and the prisoner committed to wait the action of the Executive, upon whose warrant he was subsequently delivered up to be tried in England for the murder charged to have been committed on the British steamer in the port of Manzanillo. "The general principles and the exceptions governing the subject under consideration have so far been discussed in relation to common crimes. . . . Political offenses have been treated by publicists as constituting a separate class and as demanding a different consideration and treatment from ordinary crimes; and, because of their special character, they have also been the subject, in many instances and in many places, of a very considerable abatement of jurisdictional claims. In proof of this fact it is pertinent to consult the common usage' and the common opinion growing out of that usage,' to which Chief Justice Marshall referred as evidence of that national consent which may make the law for a particular place or for particular countries, and which, as he declared in another part of his opinion, can not be suddenly and without previous notice' withdrawn by a nation without a violation of its faith. "The records of this Department afford several comparatively recent instances of the arrest of alleged offenders on American ves |