of the agreement. Negotiations were entered into between Great Britain and the United States,23 but no agreement was ever reached.24

(2) World War II

Of great significance is the World War II experience.25

In 1933, Great Britain adopted the Visiting Forces (British Commonwealth) Act.26 This provided that any Dominion military court might exercise its jurisdiction "in relation to members of the force in matters concerning discipline and in matters concerning the internal administration of the force." It did not exempt any member of the Dominion force from local criminal jurisdiction.27 In 1940, the Allied Forces Act was adopted.28 This act adopted in the main the provisions of the 1933 act for the Allied forces stationed in Britain. It granted jurisdiction to the Allied military courts in "matters of discipline and and internal administration over members of the force." It further provided that the offenses of murder, manslaughter, and rape could be tried only by the civil courts of the United Kingdom. Offenses punishable by local law which were at the same time offenses against discipline were within the concurrent jurisdiction of both the civil courts and the service courts.29 International agreements of this nature were concluded, with appropriate protocols, enabling regulations, and Orders in Council with Czechoslovakia, the Free-French Authority, Norway, Netherlands, and Belgium.30

When United States troops began to arrive in Great Britain in number, an Order in Council was issued which made applicable to those forces the Allied Forces Act of 1940,31

22 Rex v. Aughet; see infra.

23 Foreign Relations of the United States, 1918, Supp. 2, pp. 733-760. For conflicting interpretations of these negotiations, compare King I, pp. 551-553, with Barton I, pp. 391-395, and Barton II, pp. 192-194.

24 Great Britain did adopt, as domestic legislation, its Defense of the Realm Regulation No. 45 F, which affirmatively granted to the Allies power to exercise jurisdiction over their own forces. Order of Mar. 22, 1918, S. R. & O,, 1918 (No. 367), pp. 332-334.

25 See generally, the Status of the United States Forces in English Law (38 Am. J. Int. Law 50); Schwelb, the Status of Soviet Forces in British Law (39 Am. J. Int. Law 330); Goodhart, the Legal Aspect of the American Forces in Great Britain (28 A. B. A. J. 762); Schwelb, the Jurisdiction Over the Members of the Allied Forces in Great Britain, Czechoslovak Yearbook of International Law (1942), p. 147; Kuratowski, International Law and the Naval, Military, and Air Force Courts of Foreign Governments in the United Kingdom (28 Trans. Grotius Soc. 1 (1942)); the U. S. A. Visiting Forces Act, 1942 (6 Mod. L. Rev. 68); Barton I, pp. 396-406; Barton II, pp. 197–204; King I, pp. 553-559; King II, pp. 263-276 (85 Sol. J. 219).

26 23 and 24 Geo. V, ch. 6.

27 The principal objection to the act in Parliament was that under sec. 1 (3) of the act, the military courts were removed from the supervisory jurisdiction of the civil courts and that a member of the force convicted by a military court could get no relief by habeas corpus or otherwise from the civil court. See Goodhart, note 25, supra. 28 3 and 4 Geo. Vi, ch. 51.

29 Under British law, a British serviceman is subject to the jurisdiction of the civil courts for offenses against the laws of Great Britain in time of war. See Goodhart, note 25, supra.

30 Even this act with its limited grant of jurisdiction to the military courts was called a historic measure and a practical expedient to meet an obvious need. (190 L. T. 175-176). 31 United States of America (Visiting Forces) Order, 1942, S. R. & O. 1942, No. 966, p. 844.

giving the British civil courts concurrent jurisdiction over offenses against local law which were also infractions of American military law. This state of affairs was deemed unsatisfactory and, after an exchange of notes,32 the United States of America (Visiting Forces) Act, 1942,33 was adopted. This act gave American military courts exclusive jurisdiction over offenses committed by American personnel. It was termed in the note from Foreign Secretary Eden as a "very considerable departure * * * from the traditional system and practice of the United Kingdom." 34 It is clear that this grant of exclusive jurisdiction was considered unprecedented. And after the act's passage, it was termed "a startling departure from long established and jealously guarded precedent." 35 Indeed, Great Britain has recently adopted its Visiting Forces Act, 1952. This act closely parallels the jurisdictional provisions of the instant agreement and vitiates the grant of exclusive jurisdiction to our forces in Great Britain. It is expected to go into effect with the ratification of the instant agreement, but in any event in the near future.

A similar course attended the sending of United States forces to Australia, and the United States eventually concluded similar agreements with Belgium, Canada, China, Egypt,36 India, and New Zealand.

On the other hand, Great Britain itself was successful in obtaining immunity from criminal prosecution by the local courts with Belgium, China, Ethiopia, and Portugal. Also entered into during this period was a First World War," where the visiting State series of agreements similar to those of the was, in effect, an army in peaceful occupation by consent.38

The destroyer-base exchange between the United States and Great Britain also contained provisions for the exercise of criminal jurisdiction by the United States military courts on the leased bases.39 As Colonel King concedes, this agreement cannot be read to give exclusive jurisdiction to American military courts.40 Rather, that agreement gave concurrent jurisdiction to the military and local courts in all classes of offenses, except those of a security nature, those committed in the leased area, or those of a military nature, in which cases the United States was given the absolute right in the first instance to assume and exercise jurisdiction." It was further provided that nothing in the agreement was to be deemed to limit the jurisdiction of the United States over members of its forces, in matters of discipline and internal administration.42

38 United States-Denmark (E. A. S. 204 (1941)); United States-Panama (6 Dept. State Bull., 448, 449 (1942)); United Kingdom-Ethiopia, January 31, 1942; United Kingdom-Free French Authority, December 14, 1942. Similar agreements were concluded by the United Kingdom on behalf of the Allied Governments with those countries whose Governments were in exile for the territory which was occupied by the enemy, Belgium, France, the Netherlands, and Norway. (Barton II, pp. 203-204.)

39 E. A. S. 235. This agreement was modified in 1950. See infra.

40 King I, pp. 553-555. 41 E. A. S. 235, art. IV. 42 Ibid.

To summarize wartime experience: The first war involved for the most part occupations by consent and the agreements then entered into were accordingly, not comparable to the instant agreement. During the Second World War, only the United States and Great Britain were able to obtain exclusive jurisdiction over their own forces on friendly foreign soil. As between Great Britain and the United States, we obtained such exclusive jurisdiction in Great Britain itself and in several of the Dominions, but on the leased bases received only concurrent jurisdiction. Other nations on British soil did not obtain even complete concurrent criminal jurisdiction. These wartime agreements, to the extent that they are relevant, obviously reflect the relative circumstances of the parties at the time of the negotiations. In view of their varied terms, they cannot be said to codify any rule of international law.

B. Agreements in time of peace The agreements which were concluded among the nations in times of peace are most directly relevant to the provisions of the instant agreement. They show conclusively that the nations of the world recognize no rule of absolute immunity in peacetime for friendly forces on foreign soil.

43

44

(1) Bilateral Agreements During the interwar period, the British were successful in obtaining exclusive criminal jurisdiction over their forces in Iraq and Egypt.45 Of particular significance, however, is the fact that the members of forces of other nations stationed in Egypt were not considered immune from the jurisdiction of the Egyptian courts.46

In 1948, Great Britain and France entered into a visiting force agreement for the British armed forces pending their final withdrawal from French territory.47 This gave exclusive jurisdiction to the British military forces in two cases only: where the victim was a member of the British force and where the offense was contrary to United Kingdom military law, but not to French law. In all other cases, the French authorities were only to "examine with the greatest consideration any request" 48 from the British to transfer the accused to a British military court.

Since the war the United States has entered into a series of agreements with foreign countries which have dealt with this question. In two of these the United States has obtained exclusive jurisdiction over offenses committed by its forces anywhere in the receiving countries for the interim period which will terminate with the signing of the instant agreement; namely, the agreements with Denmark for Greenland 49 and Japan.50 Several provide for such exclusive jurisdiction during a state of war.51 One is quite

43 The only agreement prior to World War I which appears to have been interpreted to apply to a situation of this nature was the treaty between the United States and Panama, 1904, 33 Stat. 2234; see Republic of Panama v. Schwartzfiger, infra.

44 October 10, 1922, Great Britain Treaty Series (hereinafter, G. B. T. S.) No. 17 (1925); see also id. No. 15 (1931).

45 G. B. T. S. No. 6 (1937), 31 Am. J. Int. L. (Supp.), p. 77. See Barton II, pp. 195-196, for the cases decided under this agreement. 46 See infra.

47 G. B. T. S. No. 44 (1948).

48 Id., art. 4 (1).

49 TIAS 2292, June 8, 1951, art. VIII.

50 Administrative Agreement under art. III of the treaty, Feb. 28, 1952, art. XVII. This agreement is effective pending ratification of the instant agreement, but in any event may now be reconsidered at the request of Japan.

51 Agreement with the Republic of the Philippines, TIAS 1775, art. XII, sec. 6, Mar. 26, 1947; Modification of Leased Bases Agreement, TIAS, 2105, art. IV, sec. (1) (a) (i),

similar to the instant agreement.52 Another equivocally provides that "depending on international authority," the United States shall have exclusive jurisdiction over offenses committed by its troops in certain specified areas.53

In time of peace, the Philippine agreement gives the United States exclusive jurisdiction over offenses committed on its bases (except where the two parties are Philippine nationals or the offense is against Philippine security). Otherwise, the Philippine Republic has concurrent jurisdiction over every other offense. Either party may waive its jurisdiction, and in cases where the offense is committed in the line of duty, the Philippines will notify the United States so that it may exercise its jurisdiction. The agreements with respect to the leased bases and the Bahamas Long Range Proving Ground both provide that the United States shall have exclusive jurisdiction over security and United States interest offenses within the leased areas, but that there shall be concurrent jurisdiction everywhere else. Where there is such concurrent jurisdiction the two authorities will designate the court where the offender is to be tried. The agreement with the Dominican Republic provides for concurrent jurisdiction over offenses against Dominican nationals or local aliens outside the sites. A mixed commission decides who shall exercise the jurisdiction and in making that decision is to consider whether the act or omission constituting the offense occurred in the line of duty.

(2) Multilateral Agreements

There have been two multilaterial agreements which have been adopted by groups of nations, and one code suggested by the Institute of International Law which has been relied upon by courts in deciding these questions. None of these recognizes any principle of absolute immunity.

(1) In 1898, the Institute of International Law, a group of the world's leading international jurists, promulgated a code, entitled "Regulations Concerning the Legal Status of Ships and Their Crews in Foreign Ports," 54 which was designed to control the status of warships in both peace and war. It provides:

"ART. 16. Crimes and offenses committed on board these ships or on the boats belonging to them, whether by members of the crew, or by any others on board, shall come under the jurisdiction of the courts of the nation to which the ship belongs and shall be judged according to the laws of that nation, whatever be the nationality of the perpetrators or the victims.

"Whenever the commander shall deliver the delinquent over to the local authorities, the latter shall regain the jurisdiction which under ordinary circumstances would belong to them.

"ART. 18. If people from on board shall commit violations of the law of the country on land, they may be arrested by officers of the authority of the country and given up to local justice.

"Notice of the arrest shall be sent to the commander of the ship, who cannot require them to be given up.

"If the delinquents, not having been arrested, shall return on board, the local authority cannot take them thence, but may require only that they be handed over to

Aug. 1, 1950; Bahamas Long Range Proving Ground, TIAS 2099, art. V, sec. (1) (a) (i), July 21, 1950; Dominican Republic, art. XV, sec. 1 (a) (i), Nov. 26, 1951.

52 Iceland, TIAS 2295, May 8, 1951, art. II. 53 Saudi Arabia, TIAS 2290, June 18, 1951, art. 13 (c).

54 Scott, Resolutions of the Institute of International Law (1916), pp. 147-148 (Oxford Press).

their national courts and that it be informed agreement.59 of the result of the proceedings.

"If the persons accused of misdemeanor or crime committed on land are on duty, whether individually or collectively, in virtue of a concession, express or tacit, of the local authority, they shall, after their arrest, upon the request of the commander, be delivered over to him with the proces-verbaux stating the facts, and with the request, if necessary, that they be brought before their competent national authority, and that the local authority be informed of the result of the proceedings." 55

These resolutions were reproduced by the Institute of International Law at Stockholm in 1928, and, although they do not appear to have ever been officially adopted by any nation or nations, were relied upon by the Court of Cassation in Egypt in 1942 in the case of Ministere Public v. Triandafilou.56 The significant feature of this code is that it does not apply to the members of the crew of friendly foreign warships any immunity for offenses committed ashore.

(2) The Latin American countries adopted the Bustamente code in 1928.57 This code provides:

"ART. 296. Penal laws are binding upon all persons residing in the territory, without other exceptions than those established in this chapter.

"ART. 297. The head of each of the contracting states is exempt from the penal laws of the others when he is in the territory of the latter.

"ART. 298. The diplomatic representatives of the contracting states in each of the others, together with their foreign personnel, and the members of the families of the former who are living in his company enjoy the same exemption.

"ART. 299. Nor are the penal laws of the state applicable to offenses committed within the field of military operations when it authorizes the passage of an army of another contracting state through its territory, except offenses not legally connected with said

army.

"ART. 300. The same exemption is applied to offenses committed on board of foreign war vessels or aircraft while in territorial waters or in the national air."

This code has particular significance because it follows in precise order the structure of Chief Justice Marshall's opinion in the Exchange.58 But the code does not provide the absolute immunity from jurisdiction which that opinion has been interpreted as requiring. Rather, it renders local laws inapplicable only when the offenses committed within the field of military operations and are legally connected with the army.

are

(3) By far the most important international agreement on this question which has been reached is that negotiated and approved by the Brussels Treaty Powers, on Each of these powers, December 21, 1949. France, Luxembourg, the Netherlands, Belguim, and the United Kingdom, is a signatory of the North Atlantic Treaty, and of the in1949 stant agreement. This agreement,

Status of Members of the Armed Forces of the Brussels Treaty Powers, is designated to accomplish the same purposes as the instant

55 Arts. 16 and 18 relate only to peacetime. The part devoted to time of war has no comparable provision.

56 Ann. Dig. (1919-42), p. 165. Colonel King takes issue with the court's use of this code, in part because he maintains that Egypt was in a virtual state of war at the time. King II, pp. 258-260. But see Brinton, The Egyptian Mixed Courts and Foreign Armed Forces (40 Am. J. Int. L. 737).

57 IV Hudson, International Legislation (1928-29), 2279, 2323.

48 See infra.

agreement. As such, the treatment accorded to the question of criminal jurisdiction over the visiting forces is the most revealing demonstration possible of the attitude of those nations toward the applicable principles of international law. Article 7 (2) of that agreement provides:

"Members of a foreign force who commit an offense in the receiving state against the laws in force in that state can be prosecuted in the courts of the receiving state.

"When the act is also an offense against the law of the sending state, the authorities of the receiving state will examine with the greatest sympathy any request, received before the court has declared its verdict, for the transfer of the accused for trial before the courts of the sending state.

"Where a member of a foreign force commits an offense against the security of, or involving disloyalty to, the sending state or an offense against its property, or an offense against a member of the force to which he belongs, the authorities of the receiving state where the offense was committed will prosecute only if they consider that special considerations require them to do so.

"The competent military authorities of the foreign force shall have, within the receiving state, any jurisdiction conferred upon them by the law of the sending state in relation to an offense committed by a member of their own armed forces."

Even the most cursory reading of this provision will show that in this agreement, France, Belgium, the Netherlands, Luxembourg, and the United Kingdom have recognized no principle of absolute immunity, or even any concept of "primary jurisdiction." Every offense committed in the territory of the receiving state-those committed within the limits of the quarters of the visiting force, those committed at a time when the offender is on duty, those committed against a member of or the property of the force of the sending state-is within the jurisdiction of the receiving state which is obliged to give "the greatest sympathy" to any request for a transfer to the courts of the sending state.

This is the most recent and most authoritative expression imaginable by the countries, other than the United States and the remaining signatories, most directly concerned with the jurisdictional provisions of the instant agreement. And in the most unequivocal terms it is established that no principle of absolute, exclusive, or even primary jurisdiction in the sending state is recognized by those countries.

Not one of the multilateral expressions on the question recognizes any kind of absolute immunity. The bilateral agreements which appear to recognize such a principle are readily understandable in terms of the relative positions of the parties in the then prevailing circumstances. It may categorically be stated that the instant agreement gives, as much, if not more, "exclusive” jurisdiction over its own forces to the sending state as do comparable international agreements.

C. The Service Courts of Friendly Foreign Forces Act

Although there have been instances of the passage of foreign troops through this country which might have raised the question,60 the only domestic legislation to cover this question of the jurisdiction to try members of such forces ever enacted was the Service Courts of Friendly Foreign Forces Act of 1944. It is uniquely revealing as to the refusal of Congress to recognize any rule of absolute immunity to be accorded to friendly

59 22 Dept of State Bull., Mar. 20, 1950, 488, 449.

60 See Tucker v. Alexandroff (183 U. S. 424, 434-435).

61 22 U. S. C. secs. 701 et seq., 58 Stat. 643.

foreign forces from the criminal jurisdiction of our courts.

This act was designed to reciprocate for the grant of jurisdiction to American military courts over American forces in Great Britain given by that country in its United States of America (Visiting Forces) Act, 1942.62 Both the House and Senate committee reports contain the notes exchanged between the United States and British Government, wherein the British Government terms its own action-granting the exclusive jurisdiction-"a very considerable departure * * from the traditional system and The practice of the United Kingdom." 63 Senate committee report contains the statements that the proposed legislation “is of a temporary and conditional nature since its operation is revocable at the pleasure of the President as agent of Congress, under section 6. This is an important feature of the bill. At any rate, Congress is at liberty to repeal or amend at any time.

"The committee do not concede that any foreign military court has more than conditional jurisdiction while on our soil." 64

During the course of the debate in the Senate, Senator Revercomb maintained that the pending bill was not clear as to the jurisdiction which the foreign-service courts would have and that the bill should be amended to define that jurisdiction more clearly. He stated that that bill was not properly reciprocal to the British legislation, which had granted exclusive jurisdiction to the American-service courts in Great Britain.66 In reply, Senators Murdock and McFarland, who were in charge of the bill, stated flatly that the Senate committee had considered and rejected the proposal that United States courts be divested of jurisdiction." Senator Murdock stated:68

"I ask the Senator whether he wants to prohibit the jurisdiction of the Federal courts and the jurisdiction of the State courts, as the parliamentary act prohibits the jurisdiction of the criminal courts in England. If he wants to go that far, I think he should tell the Senate. That is one of the questions, as the Senator recalls, which came before the Committee on the Judiciary. By a majority vote it was decided, I think rather emphatically, that we did not want to prohibit jurisdiction on the part of our courts, but that all we wanted to do was to implement whatever Jurisdiction the foreign-service courts brought with them to this country, first, by power of arrest, second, by power of dealing with witnesses, and stop there.

"As I understand the Senator from West Virginia [Senator Revercomb], he wants to deny criminal jurisdiction to the Federal and State courts of this country. The position I take is that it is not necessary to go that far, nor do I want to go that far, nor do I think Congress has the right to prohibit jurisdiction on the part of the State courts over criminal matters."

62 3 and 4 Geo. VI, ch. 51. See supra. 63 S. Rep. No. 956, 78th Cong., 2d sess.; H. Rept. No. 936, 78th Cong., 1st sess.

64 S. Rept., supra, note 63, pp. 11-12. 65 CONGRESSIONAL RECORD, volume 90, part 5, pages 6490, 6492. The Senator prefaced his remarks by stating that under international law, as recognized, as he thought by American law, but not by British law, the foreignservice courts were entitled to exclusive jurisdiction over their members. Ibid. However, he later stated that his proposed amendment had been carefully phrased so as not to use the words "exclusive jurisdiction.". Id. at 6496-6497. Despite this explanation the amendment was rejected. Id. at 6498. 6 Id. at 6495-6498 passim.

66

67 Id. at 6491-6492.

68 Id. at 6492.

· And Senator McFarland stated:

"As I understand the argument the Senator from West Virginia now makes and the argument he made before the Committee on the Judiciary, he would divest our courts of what jurisdiction they may have to try these cases. The majority of the committee were unwilling to do that. The majority of the committee felt that the Federal Government had no right to divest State courts of jurisdiction.

* * If [the service courts] have not jurisdiction, we do not have to give up the defendants, we do not have to subpena witnesses, we do not have to do anything. And if they do not try the defendants, we can try them ourselves. That is the difference. But the Senator from West Virginia would pass legislation which would divest our courts of jurisdiction. That is the only difference between the majority and the able Senator from West Virginia." 69

The careful language of the committee reports, the rejection of the Revercomb amendment, and the statements of the managers of the bill on the Senate floor indicate that the phraseology of the act, which contains no definition of the jurisdiction of the foreign service courts nor any prohibition against the exercise of jurisdiction by American courts, either State or Federal, was a deliberate rejection by the Congress of the concept that there is an absolute immunity accorded foreign forces in a friendly state from the criminal jurisdiction of that state. It may therefore be stated that the only domestic legislation which the Congress has considered dealing with this subject has been based upon the premise that there is no exclusive criminal jurisdiction in foreign service courts over foreign friendly forces stationed in this country.

III. JURISDICTION IN THE ABSENCE OF AN AGREEMENT

The instant agreement provides that offenses against the security of one state, not punishable by the laws of the other, are within the exclusive jurisdiction of the first state. Offenses by members of the sending state against the person or property of that state or offenses committed in the line of duty are within the primary jurisdiction of the sending state. All other offenses are within the primary jurisdiction of the receiving state.70

The discussion in part II shows that in international agreements the nations have not acted upon any hypothesis that visiting forces are entitled to immunity as a matter of right and that the most directly parallel agreements recognize less immunity than that which is afforded by the instant agree

69 And see remarks of Senator Connally, id., at 6497.

70 This use of "primary" and "exclusive" is quite correct. An offense against the security of one state which is not an offense against the laws of the other must necessarily be within the sole jurisdiction of the first, that is, if any state has jurisdiction. This jurisdiction, accordingly, is "exclusive." On the other hand, offenses against the laws of both states are within the concurrent jurisdiction of those states. See note 83, infra. Priority of this jurisdiction is, in turn, appropriately termed "primary." It should further be pointed out that under article VII, 8, an accused who has been tried by one state and acquitted, convicted or pardoned cannot be tried again for the same offense within the same territory. But nothing prevents the military authorities of the sending state from trying a mem-. ber of its force for breach of discipline, even though he has been tried for the same offense by another state.

ment. Moreover, it is clear that if there were no agreement controlling the issue, our forces abroad would, again, be entitled to less immunity than the instant agreement affords. Where there were no agreements the cases which have been decided by the tribunals of the world show that practically the only situation where a claim of immunity has been given any recognition whatsoever has been for offenses committed in the line of duty, a category of offenses clearly covered by the instant agreement.

A. The Schooner Exchange

The opinion of Chief Justice Marshall of the Supreme Court of the United States in The Schooner Exchange is the principal basis upon which rest those who claim that an absolute exemption or immunity for friendly armed forces from the criminal jurisdiction of the receiving state exists. Certainly it is the basis for the numerous textbook writers who have asserted the proposition." And it is the cornerstone of Colonel King's legal structure. Although it presents no support for the protagonists of the exclusive jurisdiction contention, the frequency of its citation requires that its language, rationale, and decision be thoroughly analyzed.

In 1811 two American citizens filed a libel in the United States District Court for the District of Pennsylvania against the schooner Exchange, then in the port of Philadelphia. In this libel they alleged that they were the true owners of the vessel, but that on a previous voyage the ship had been seized by persons acting under Napoleon's orders. They prayed for a decree restoring the vessel to them. At the instance of the executive department, the United States attorney filed a suggestion that the vessel was then an armed French public vessel which had been forced to enter the port of Philadelphia out of necessity for refreshments and repairs. Affidavits were filed in the court verifying the commission of the captain. The circuit court reversed the dismissal of the libel by the district court, which had been based upon the ground that a friendly public armed vessel is not subject to the ordinary judicial tribunals of the country, so far as regards the question of title. opinion of the Supreme Court, reinstating the judgment of the district court, was written by Chief Justice John Marshall. Because the language he used has been quoted by so many courts and writers since, it will be set forth in relevant part below."3

The

T The Schooner Exchange v. McFaddon (11 Cr. 116).

72 The authorities are collected in King I, 544-546; Bathurst, American Jurisdiction Over Friendly Foreign Armed Forces (23 Br. Yearbook of Int. L. 338, 339 (1946)). Two of the most eminent authorities quoted by Colonel King, however, expressly limit the immunity to offenses committed in the line of duty or within the lines of the visiting forces. Lawrence, Principles of International Law (6th ed.) sec. 107, p. 246; Oppenheim, 1 International Law (4th ed.), sec. 445.

73 "The jurisdiction of courts is a branch of that which is possessed by the Nation as an independent sovereign power. The jurisdiction of the Nation, within its own territory, is necessarily exclusive and absolute; it is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty, to the extent of the restriction, and an investment of that sovereignty, to the same extent, in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.

"This consent may be either express or implied. In the latter case, it is less deter

(1) It is obvious that all the Court was called upon to decide was whether a friendly foreign warship was immune from attachment from one claiming to be its owner. This issue is quite different from that of the immunity of an individual soldier from

minate, exposed more to the uncertainties of construction; but, if understood, not less obligatory. The world being composed of distinct sovereignties, 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 certain 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. A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.

"This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns, nor their sovereign rights, as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. "This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdictin, which has been stated to be the attribute of every nation." (P. 135, et seq.)

The first class of cases related to the exemption of the person of the sovereign himself; the second to the immunity of foreign ministers.

"Third. A third case in which a sovereign is understood to cede a portion of his territorial jurisdictions, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it, would certainly be considered as violating his faith. By exercising it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops, during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require.

"But if, without such express permit, an army should be led through the territories of a foreign prince, might the jurisdiction of the territory be rightfully exercised over the individuals composing this army? Without

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criminal prosecution by the local authorities for rape or burglary. The proper soldier comparison is rather to a member of the crew ashore who has committed an offense outside his line of duty. And even Colonel King concedes that the great weight of authority

doubt, a military force can never gain immunities of any other description than those which war gives, by entering a foreign territory against the will of its sovereign. But if his consent, instead of being expressed by a particular license, be expressed by a general declaration, that foreign troops may pass through a specified tract of country, a distinction between such general permit and a particular license is not perceived. It would seem reasonable, that every immunity which would be conferred by a special license, would be in like manner conferred by such general permit.

"We have seen, that a license to pass through a territory implies immunities not expressed, and it is material to inquire, why the license itself may not be presumed? It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war an act, not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military force; and an army marching into the dominions of another sovereign may justly be considered as committing an act of hostility; and, if not opposed by force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of the state be capable of deciding that such military commander is without a license." (Pp. 138-140.)

The Chief Justice then went on to point out that, unlike armies, there was no prohibition against foreign armed war vessels entering a friendly port without the express consent of the sovereign. Further, a public armed ship constituted a part of the military force of her nation, acting under the immediate and direct command of the sovereign and was employed by him on national objects. Consequently

"The implied license, therefore, under which such vessel enters a friendly port, may reasonably be construed, and it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality. (P. 143.)

"Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction, either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions, therefore, which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that property in the courts of the country in which it is found, ought not, in the opinion of this court, to be so construed, as to give them jurisdiction in a case, in which the sovereign power has impliedly consented to waive its jurisdiction." (P. 144.).

supports the rule that at least in times of peace, members of the crews of friendly foreign warships who commit offduty offenses against the local law ashore are subject to the local criminal jurisdiction. As the chief justice of New South Wales recently stated in regard to the opinion: 75

"What the learned judge had in mind was exercise of a jurisdiction which would prevent the troops from acting as a force-something analogous to preventing a ship of war from being in a position to act as such, including interference by local courts with the maintenance of discipline-not exercise of jurisdiction over individual soldiers in respect of liabilities incurred or wrongs done perhaps out of all connection with their military duties."

Further, it would seem that the Chief Justice, in speaking of the "waiver of all jurisdiction over the troops, during their passage" was referring to the waiver of the right of the territorial sovereign to exercise his own disciplinary jurisdiction, for the passage continues, "and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require." 76

Finally, the Chief Justice expressly limited his remarks about the exemption of the foreign forces to troops in passage." Completely different considerations determine the immunity which must necessarily attend passing troops on, as the Chief Justice evidently envisioned it, a mission of urgency and immediacy, perhaps never to return via that country, and troops stationed in a friendly state in time of peace for an indeterminate period. The path of troops en route was, in Marshall's day, a narrow, clearly defined avenue. Presumably, the path of the march was completely within the control of the troop commander. It might very well have been considered that such troops, in transit, were constantly on duty. On the other hand, today's troop locations are dispersed throughout the receiving state and

14 King, II, pp. 261-262; see infra.

75 Wright v. Cantrell (44 New South Wales State Reports, 45, 49 (1943), Ann. Dig., 194345, pp. 133, 136).

76 11 Cranch. at 138. In Tucker v. Alexandroff (183 U. S. 424), the Court, in discussing the Exchange, appears to agree with this interpretation. It stated (p. 433):

"While we have no doubt that, under [the Exchange], the foreign officer may exercise his accustomed authority for maintenance of discipline, and perhaps arrest a deserter dum fercet opus, and to that extent this country waives its jurisdiction over the foreign crew or command, yet if a member of that crew actually escapes from the custody of his officers, he commits no crime against the local government, and it is a grave question whether the local courts can be called upon to enforce what is in reality the law of a foreign sovereign."

And the four dissenting Justices stated (183 U. S. at 459):

"That rule, waiving the jurisdiction of the United States over a body of men, and allowing them to be governed, disciplined and punished by their own officers, applies only to an armed force, segregated from the general population of the country, and lawfully passing through or stopping in the country for some definite purpose connected with military operations."

"This language was repeated in a gratultous dictum in Coleman v. Tennessee (97 U. S. 509, 516) and was uncritically expanded by Justice Field to include troops stationed in a friendly country in Dow v. Johnson (100 U. S. 158, 165). Both Coleman and Dow were concerned with the completely different issue whether a hostile occupying force was immune from the jurisdiction of the local courts. See also Hamilton v. Mc-. Laughry (136 Fed. 445 (D. Kans., 1905)).

place the individual soldiers in necessary daily contact with the local residents. The control which the commanding officer has over every individual action of the troops is naturally far less than that exercised over troops on the march, or quartered in a temporary camp for the night. Completely different problems pertaining to criminal jurisdiction over the members of the forces necessarily arise out of these different circumstances.

The rule of absolute immunity which, it is contended, flows from the Marshall opinion, was summarily rejected in the only reported American case which research has disclosed was squarely concerned with such a claim of immunity. In United States v. Thierichens,78 a German war vessel had been interned during but prior to our entry into. the First World War in Philadelphia. The master of the vessel was indicted on two counts of smuggling and one of violating the Mann Act. He claimed that as a member of a friendly foreign war vessel he was entitled to full immunity from local criminal prosecution, and moved to quash the indictments. The district court, apparently assimilating the defendant to the status of a member of a crew of a friendly foreign warship, completely rejected the claim. On the smuggling counts the court held that there was nothing to show that the defendant was acting in the line of duty, and as to the Mann Act count, "even a discussion of the application of the rule would be lending dignity to an absurdity."

(2) More important, however, than the distinctions which can be drawn and the qualifications upon the immunity which must be read to give the opinion meaning is its rationale. Those who make the claim that there is a rule of international law of exclusive jurisdiction 79 in the sending state's authority over criminal offenses committed by its members have failed to note that the Exchange was decided upon implications and presumptions in the absence of a treaty or agreement between the sovereigns upon the issue. The opinion makes quite clear that the immunity may be waived by mutual consent, or even by unilateral action of the receiving country.80 The entire opinion is built upon a structure of implications which are effective only where there are no express agreements to the contrary. As the Chief Justice stated: 81

"The preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction, must be derived from the consent of the sovereign or the territory; that this consent may be implied or expressed; and that when implied, its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it, must be supposed to act."

Accordingly, the receiving state may demand any conditions it wishes before it will permit the friendly troops upon its soil. If these conditions are not satisfactory to the sending state, it need not send the troops at all. This is a function of bargain and negotiation. To say that there is a rule of international law that friendly foreign forces have exclusive jurisdiction over their own forces does no more than to state what the situation might be were there only an unqualified assent to the admission of those troops to the receiving state. It plays no part in determining what the status of those forces is where an agreement has been reached on that question. For that is the very function of the agreement.

Nor can it be maintained that there exists such a firm understanding among the states that friendly forces will have exclusive juris

78 243 Fed. 419 (E. D. Pa., 1917).

79 See Bricker reservation, supra.

80 11 Cranch at 144.

81 Id. at 143.

diction over offenses committed by its members that it is a violation of international law for states to attempt to agree otherwise. In the first place, as has been shown, there is no such uniformity in the agreements reached among the nations. In the second, it is an unquestioned principle of international law that this jurisdiction, whatever it may be, can be waived.82 What may be waived by a state on a case-by-cases basis, a fortiori may be waived in negotiating an agreement to cover any case which will arise.83

Whatever may be the limitation to be found in international law upon the immunity which visiting forces may have where there is no agreement regulating the respective jurisdictions to try criminal offenses committed by those forces, it is clear that this immunity and its qualifications have no bearing upon the terms of an express agreement between the states concerned to define those jurisdiction. Reliance upon the Exchange for any guiding rule of international law is misplaced, where the question is what the terms of an international agreement should be.

B. Cases in the tribunals of the world

Since the decision in the schooner Exchange, the tribunals of the world have considered claims of immunity from local criminal jurisdiction in a variety of situations, including case which arose where there was no agreement between the nations concerned dealing with this issue.84 In this class of cases, not one of any significance resulted in the grant to a member of a visiting force of immunity from the local jurisdiction where the same result would not obtain under the instant agreement. And several denied the claim where it would have been granted had this agreement been effective.

At least the Supreme Court of Canada, the Court of Cassation of the Mixed Courts of Egypt, the Supreme Court of New South Wales, the British High Court of Justice, and the United States District Court for the Eastern District of Pennsylvania have considered and expressly rejected the contention that, absent an agreement among the nations concerned, visiting friendly forces are entitled to absolute immunity from the criminal jurisdiction of the host state.

In Reference Re Exemption of U. S. Forces From Canadian Criminal Law,85 this precise question was referred by the Governor General of Canada in Council to the Supreme Court of Canada: the extent to which visit

82 See e. g., The Exchange, supra, passim; Chung Chi Cheung v. The King [1939] A. C. 160; French State v. Pratt (Ann. Dig., 191922, p. 332).

83 The use of the term "primary jurisdiction" in the instant agreement is a more accurate way to describe the power of the respective states than the term "exclusive jurisdiction." "Exclusive jurisdiction” implies that the offender can be tried by one state and one state only. Yet, it is clear that the jurisdiction of any state can be "waived."

Merely "waiving" jurisdiction could not of itself confer jurisdiction upon another state. That state must have had jurisdiction, which, by virtue of the agreement, it was restrained from exercising. Language which places the two states on a relative, rather than an absolute basis, is, accordingly more apt.

84 The cases must of course be read in the light of which court it is which is considering the claim. A military court which states that a defendant before it is completely immune from local criminal jurisdiction is obviously deciding a vastly different question than a civil court which is determining whether a member of a foreign force before it may be prosecuted for violation of the laws of the host state. Cf. In re Poliment, infra.

(1943) S. C. R. 483, (1943) 4 DLR 11.

ing American Armed Forces would be entitled to immunity from the local criminal Jurisdiction in the absence of an express agreement covering the issue. The Chief Justice and Mr. Justice Hudson answered that there was no principle in Canadian law which deprived the Canadian courts of jurisdiction in respect of offenses against local law committed by the foreign forces against local law, although Canadian courts in fact did not exercise jurisdiction in respect of acts committed within the lines of such forces or of offenses against discipline generally committed by one member of the forces against another in cases in which the act or offense did not affect the person or property of a Canadian subject. Mr. Justice Rand held that members of the United States forces were exempt from Canadian criminal proceedings for offenses committed in their camps or on their warships except against persons not subject to United States service law or their property, or for offenses under local law wherever committed, against members of their own forces, their property and the property of their Government, but the exemption was only to the extent that United States forces exercised jurisdiction over such offenses. Two Justices, Kerwin and Taschereau, thought that the American forces would be completely immune from local criminal jurisdiction.

The Mixed Courts of Egypt have faced this problem in a long series of cases.86 It was the definite and unequivocal conclusion of that court, after careful consideration of the arguments on both sides of the question, that there is no principle of international law which accords absolute immunity.87

In Wright v. Cantrell,88 the Supreme Court of New South Wales was faced with the question whether a British naval officer could be sued for slander by a master mariner in the employ of the United States Army. In rejecting the defense of immunity from suit, the court analyzed substantially all the materials dealing with the subject and the court concluded that the doctrine of complete im→ munity is not only completely lacking in what has been described [as] the hallmarks of general assent and reciprocity, but is also inconsistent with the implications of local legislation.

The British High Court was faced with the same contention in 1942. A Czech soldier stationed in Britain with the Czech forces, after being reprimanded by a superior officer, attempted to commit suicide in his barrack room. He succeeded in wounding himself and another, and killing a third Czech subject.89 The defense contended that as the offense was committed in the barrack room and involved matters concerning discipline, the offense was one over which British courts had The no jurisdiction. court rejected even this limited statement of the principle, saying that the claim was "much wider than * * * was real law upon the subject." It then held that the offense

86 These cases are discussed by Judge Brinton, president of the court of appeals, Mixed Courts of Egypt, in two articles, The Egyptian Courts and Foreign Armed Forces (40 Am. J. Int. L. 737 (1946)), and Jurisdiction Over Members of Allied Forces in Egypt (38 Am. J. Int. L. 375 (1944)). The second article effectively answers the criticisms of the decisions in those cases by Colonel King (King II).

S7 See Malero Manual v. Ministere Public (39 Am. J. Int. L. 349 (1943)); Gaitanos v. Ministere Public (Ann. Dig., 1919-42, p. 169); Ministere Public v. Tsoukharis (Ann. Dig., 1943-45, p. 150); Anne and Others v. Ministere Public (Ann. Dig., 1943-45, p. 115). The remaining cases will be found in the articles cited n. 86, supra, and in Barton II. 88 44 New South Wales State Reports 45, (Ann. Dig., 1943-45, p. 133).

89 Rex V. Navatril (Ann. Dig., 1919-42 (Supp.), p. 161).