THE SCHOONER EXCHANGE v. MCFADDON [§ 252

obedience of foreign public armed vessels to the process of courts of the United States. In 1805, Congress reasserted the right, and made provision for the exercise of jurisdiction over persons committing offenses, even as slight as misdemeanors, on foreign vessels of war within the waters of the United States.2 The President, in pursuance of the requirement that he issue instructions for carrying the act into effect, did issue instructions, which carefully avoided the possibility of a resort to force in order to effect an arrest, unless under the express direction of the Executive.3 $252. The Same.

In 1812, in the case of The Schooner Exchange v. McFaddon, the Supreme Court of the United States rendered a decision which has since guided the legislative and judicial departments of the Government. The case raised the question whether a vessel commissioned as a man-of-war by the French Government was, upon entering a port of the United States, subject to the jurisdiction of a local court, whose aid was invoked by former owners of the vessel to determine whether their title had been lawfully divested by French authority. Chief Justice Marshall, in the opinion of the Court, adverted to the exclusive and absolute jurisdiction of a State within its own territory. He declared that any restriction thereof was to be derived from the nation's consent; that such consent might be express or implied, and might in some instances be tested by common usage, and by common opinion growing out of that usage. He said that a public armed vessel constitutes a part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. He has many and powerful motives for preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without affecting his power and his dignity. The implied license therefore under which a 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 rights of hospitality. . . Without doubt the sovereign of the place is capable of destroying this implication. He may

1 Sections 7 and 8, Chap. 50, 1 Stat. 384.

Sections 1 and 7, Chap. 41, Act of March 3, 1805, 2 Stat. 339 and 342. See, also, statement in Moore, Dig., II, 575.

Instructions of May 29, 1805, contained in Moore, Dig., II, 575, citing Circulars, Dept. of State, I, 3, 4.

47 Cranch, 116, Moore, Dig., II, 576–577.

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.1

It is not surprising that the learned Chief Justice understood clearly that all exemptions from jurisdiction were necessarily derived from the consent of the territorial sovereign, or that he appreciated the force of the reasons why that consent, in the case of foreign vessels of war, ought to be given. It is of greater significance that, in view of the previous attitude of his own country, he concluded that such consent was in fact to be ascribed to the United States or to nations generally. The decision was due to the assumption that an enlightened State intended to act in good faith, and to the belief that there should be imputed to it actual consent to whatever yielding of jurisdiction the observance of good faith might demand. The declaration, on the other hand, that a State might, if it so desired, and sufficiently made known its intention, withhold consent and retain jurisdiction, is also of importance. It was not intimated (nor was there need of intimation) that such action would constitute an abuse of power. The Court was confronted with a simple problem: to decide whether the statutes of a State, descriptive of the ordinary jurisdiction of its tribunals, ought to be so construed as to give them jurisdiction in a case in which the territorial sovereign had impliedly consented to waive its jurisdiction. On that precise question the decision was in the negative.

This case settled the law with respect to the United States. Since the decision there has been no disposition on the part of Congress to assert jurisdiction over foreign vessels of war.2

$253. The Same.

At the present time a foreign vessel of war and the occupants thereof are acknowledged to be exempt from local process. The

17 Cranch, 144 and 146.

2 The Act of May 15, 1820, forbidding foreign armed vessels for a period of two years to enter any harbors of the United States, other than those specified in the Act, 3 Stat. 597, was primarily an assertion of the right to exclude such vessels from territorial waters, rather than an exercise of jurisdiction over those permitted to enter therein. See statement in Moore, Dig., II, 564. See, also, Mr. Evarts, Secy. of State, to Mr. Comacho, Venezuelan Minister, Dec. 9, 1880, MS. Notes to Venezuela, I, 210, Moore, Dig., II, 565. 3 In addition to The Schooner Exchange v. McFaddon, 7 Cranch, 116, see

OBLIGATIONS OF THE VESSEL

[§ 253 ship cannot be lawfully subjected to a civil action arising, for example, from claim for salvage,1 or to a criminal action arising from the violation of a local regulation. No occupant while remaining on board the vessel is subject to the local jurisdiction, notwithstanding his infraction of the local criminal code by an act committed on shore or taking effect there.2

The vessel of war and its occupants owe, nevertheless, welldefined duties to the territorial sovereign. The former is obliged. to respect, for example, local regulations pertaining to navigation and quarantine,3 and special obligations, when, in time of war, the vessel attached to a belligerent service enters a neutral port. Disregard of them may compel the territorial sovereign to resort to measures of prevention, and if need be, to cause the ship to depart from its waters. Moreover, it may not unreasonably request of the commander or of his government the surrender of an inmate whose conduct has wrought grave harm ashore in violation of the local criminal law.5

Mr. Marcy, Secy. of State, to Mr. Dobbin, Secy. of Navy, April 21, 1856, 45 Dom. Let. 212, Moore, Dig., II, 578; Opinions of Mr. Cushing, Atty.Gen., April 28, 1855, and Sept. 6, 1856, 7 Ops. Attys.-Gen., 122, 131, and 8 Ops. Attys.-Gen., 73, Moore, Dig., II, 578; Dana's Wheaton, Dana's Note No. 63. Also The Pampa, 245 Fed. 137.

1 See The Constitution, L. R. 4 P. D. 39, 45, Moore, Dig., II. 579. Concerning circumstances when a foreign vessel of war as plaintiff in a suit brought against another vessel may be compelled to give security for damages, see The Newbattle, L. R. 10 P. D. 33, Moore, Dig., II, 579.

Cf., also, Naval War College, Int. Law Situations, 1907, 22-45, containing the decision of Sir Francis Piggott in the case of The Alexander, a United States naval auxiliary vessel which had been subjected to a civil suit arising from a collision in the harbor of Hong Kong, in 1906.

2 See opinions of Mr. Cushing, Atty.-Gen., April 28, 1855, and Sept. 6, 1856, 7 Ops. Attys.-Gen., 122, and 8 Ops. Attys.-Gen., 73, Moore, Dig., II. 578; Mr. Fish, Secy. of State, to Commodore Case, Jan. 27, 1872, 92 Dom. Let. 322, Moore, Dig., II, 579 and 588.

See, also, Arts. XV and XVI of Regulations Concerning the Legal Status of Ships and their Crews in Foreign Ports, adopted by the Institute of International Law in 1898, Annuaire, XVII, 273, 277, J. B. Scott, Resolutions, 143, 147.

3 Mr. Hill, Acting Secy. of State, to Secy. of the Navy, Oct. 6, 1899, 240 MS. Let. 399, Moore, Dig., II, 583; also memorandum of Mr. Lemly, JudgeAdvocate-General, U. S. N., communicated to Mr. Moore, Third Assist. Secy. of State, July 6, 1891, Moore, Dig., II, 584; also Woolsey, 6 ed., 9293. Cf. Access to Ports, supra, § 187.

4 See, for example, Chap. 30, title V, § 10, Act of June 15, 1917, 40 Stat. 223, U. S. Comp. Stat. 1918, § 10179, authorizing the compelling of any foreign vessel to depart from the United States or its possessions in all cases in which, "by the law of nations or the treaties of the United States, it ought not to remain."

This is the more obvious when the act complained of is committed outside of the vessel. See Mr. Fish, Secy. of State, to Commodore Case, Jan. 27, 1872, relative to the surrender of a person charged with the commission of an offense rendered extraditable by a treaty with the demanding government, 92 MS. Dom. Let. 322, Moore, Dig., II, 579.

(c)

§ 254. Duty Not to Grant Asylum.

The territorial sovereign may fairly and normally object to the conduct of the commander of a foreign public vessel who utilizes the exemption from local jurisdiction enjoyed by the ship, to grant asylum thereon to fugitives from justice, and thus to shield them from the operation of local laws.1 In Regulations of the United States Navy of 1913, it was declared that "the right of asylum for political or other refugees has no foundation in international law." It was stated, however, that where frequent insurrections occur and constant instability of government exists, "usage sanctions the granting of asylum." It was said that even in the waters of such countries officers should refuse all applications for asylum, except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob; and it was added that officers must not directly or indirectly invite refugees to accept asylum.2

1 See discussion of the subject in Moore, Dig., II, 845-855, and documents there cited; also, Naval War College, Int. Law Situations, 1902, 21–27, id. 1904, 26-34.

2 See Article R-1649, U. S. Navy Regulations and Naval Instructions, 1913; also Wilson, Int. Law, 1910, p. 118, note 46, quoting Regulations of 1905, No. 308.

Concerning the asylum granted certain Chilean refugees on American vessels of war in 1891, see Moore, Dig., II, 851-852, citing H. Ex. Doc. 91, 52 Cong., 1 Sess., 71 and 289.

Concerning the asylum granted certain Brazilian refugees on Portuguese vessels of war in 1894, and the consequences thereof, cf. For. Rel. 1894, 6473, and 513, Moore, Dig., II, 853-855. See, also, Mr. Olney, Secy. of State, to Mr. Sill, Minister to Korea, telegram, Dec. 2, 1895, For. Rel. 1895, II, 974, in which strong opposition was expressed to the suggestion of the Minister to permit certain political refugees in his hands to take passage on the U. S. S. Yorktown for Shanghai. See correspondence between the United States and Mexico, 1909-1910, For. Rel. 1910, 739-742, respecting the conveyance of Gen. Zelaya out of Nicaraguan territory as a refugee on a Mexican gunboat.

On Oct. 28, 1913, the Department of State declared: "While the rule governing such cases is that it is the duty of American men of war to protect American citizens, it is, as a general rule, against the policy of this Government to grant asylum in its ships to the citizens of foreign countries engaged in political activity, especially when such asylum is for the purpose of furthering their political plans. Temporary shelter to such persons, when they are seeking to leave their country, has sometimes been conceded on grounds of humanity, but even this is done with great circumspection lest advantage be taken of it to further the political fortunes of individuals with the result of involving us in the domestic politics of foreign countries." For. Rel. 1913, 854, 855.

Art. XIX of the Regulations Concerning the Legal Status of Ships and their Crews in Foreign Ports, adopted by the Institute of International Law in 1898, appeared to recognize the propriety of offering an asylum to political refugees, as distinct from common offenders against the local criminal law, or deserters from a military or naval service. It was declared, however, that if the commander of the foreign vessel of war should receive political refugees

OFFICERS AND CREWS

[§ 255 When a fugitive from justice is once received on board of a foreign vessel of war within the territorial waters of a State he is believed to be withdrawn from the local jurisdiction.1 Although his reception may have amounted to an abuse of the privileges accorded the vessel, the territorial sovereign does not from that circumstance derive a right of jurisdiction over the ship or its occupants.2 If the individual has been wrongfully taken on board, and so improperly withdrawn from the control of the territorial sovereign, a demand for his surrender should be made upon the commander of the vessel,3 or upon the State to which the vessel belongs, through the diplomatic channel, and following the procedure applicable in extradition cases.4

$255. Officers and Crews.

(d)

The exemption enjoyed by persons officially connected with and on board of a foreign public vessel does not accompany them after they have left the ship or its tenders and are on shore. If a body of sailors under the command of an officer is permitted to land as an organized force, as for the purpose of taking part in a local parade, the members are doubtless exempt from the local jurisdiction, not, however, on account of their connection with a public vessel, but because they constitute an organized force of a foreign State permitted to enter the national domain.5

Officers and crews of foreign vessels of war, who commit offenses while ashore, are generally subject to local prosecution. In deal

on board, it should be clearly established that they were such, and that their admission should be under conditions such as not to constitute assistance by him to one of the parties in dispute to the prejudice of the other. Annuaire, XVII, 278, J. B. Scott, Resolutions, 148.

1 See Oppenheim, 2 ed., I, § 450.

2 When, in time of war, a neutral vessel of war attempts to remove from a port under belligerent occupation persons expressly forbidden to depart therefrom, without permission of the military authorities, the belligerent may, as such, justly employ reasonable means to block the attempt by searching the vessel and taking off the individuals. See Moore, Dig., II, 849-850, citing Dip. Cor. 1863, II, 915, also Dip. Cor. 1866, II, 611–612, id. 1867, II, 705.

Mr. Fish, Secy. of State, to Mr. Case, Jan. 27, 1872, MS. Dom. Let. 322, Moore, Dig., II. 851.

See case of the Salvadorean refugees, and relating thereto, President Cleveland, Annual Message, Dec. 3, 1894, For. Rel. 1894, xiv, Moore, Dig., II, 851; also article by J. B. Moore, in Am. Law Rev. XXIX, 1.

See Art. XXI of Regulations Concerning the Legal Status of Ships and their Crews in Foreign Ports, adopted by the Institute of International Law in 1898, Annuaire, XVII, 278, J. B. Scott, Resolutions, 149.

Tucker v. Alexandroff, 183 U. S. 424, 433, Moore, Dig., II, 590; Exercise of Jurisdiction within the National Domain, On Land, supra, § 220.

Mr. Randolph, Secy. of State, to Mr. Hammond, July 23, 1794, 7 MS. Dom. Let. 55, Moore, Dig., II, 585; Mr. Buchanan, Secy. of State, to Mr.