cases of a foreign sovereign, or his public minister, fleet, or army, coming within the territorial limits of another State, which, as already observed, are, in general, exempt from the operation of the local laws.1

§ 13. Ex- I. The judicial power of every independent State, tent of the then, extends, with the qualifications mentioned,

judicial

criminal

power over 1. To the punishment of all offences against the offences. municipal laws of the State, by whomsoever committed, within the territory.2

2. To the punishment of all such offences, by whomsoever committed, on board its public and private vessels on the high seas, and on board its public vessels in foreign ports.3

3. To the punishment of all such offences by its subjects, wheresoever committed.

4. To the punishment of piracy, and other offences against the law of nations, by whomsoever and wheresoever committed.4

It is evident that a State cannot punish an offence against its

peut, dans la règle, ni procéder, ni prononcer jugement, sans la participation du consul et la coopération de son interprète, présent à la procédure, pour défendre les intérêts de l'individu de sa nation. Ils peuvent recevoir sous leur protection tous les bâtiments ou les individus étrangers qui la leur demanderont. Si un individu qui est sous leur protection doit être arrêté, ils peuvent, en s'en rendant cautions, le reclamer, &c. Mensch, Manuel Pratique du Consul, p. 4. See, also, for the jurisdiction of consuls in the Levant, China, and Muscat, Moreuil, Manuel des Agents Consulaires, pp. 127, 377.

This subject was further elucidated during the controversy in reference to Koszła. Vide supra, p. 136, note.

The treaty of the United States with the Sultan of Muscat, 1833, article 9, authorizes the appointment of consuls in the ports of the Sultan where the principal commerce is carried on, and which consuls shall be the exclusive judges of all disputes or suits wherein American citizens shall be engaged with each other. U. S. Statutes at Large, vol. viii. p. 459. The treaty with Siam, 1833, article 10, stipulates for the privilege of appointing American consuls, provided it is accorded to any other power except the Portuguese. Id. p. 455. The Treaty of 31st March, 1854, with Japan, contains the following provision:- Article 11. There shall be appointed by the government of the United States consuls or agents, to reside in Simoda, at any time after the expiration of eighteen months from the date of the signing of this treaty, provided that either of the two governments deem such arrangement necessary. Washington Union.

1 Vide supra, § 9, p. 144.

3 Ibid. §§ 9, 10, pp. 145, 159.

2 Ibid. § 6, p. 121.

4 Vide infra, § 15.

municipal laws, committed within the territory of another State, unless by its own citizens; nor can it arrest the persons or property of the supposed offender within that territory; but it may arrest its own citizens in a place which is not within the jurisdiction of any other nation, as the high seas, and punish them for offences committed within such a place, or within the territory of a foreign State.

By the Common Law of England, which has been adopted, in this respect, in the United States, criminal offences are considered as altogether local, and are justiciable only by the courts of that country where the offence is committed. But this principle is peculiar to the jurisprudence of Great Britain and the United States; and even in these two countries it has been frequently disregarded by the positive legislation of each, in the enactment of statutes, under which offences committed by a subject or citizen, within the territorial limits of a foreign State, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey. There is some contrariety in the opinions of different public jurists on this question; but the preponderance of their authority is greatly in favor of the jurisdiction of the courts of the offender's country, in such a case, wherever such jurisdiction is expressly conferred upon those courts, by the local laws of that country. This doctrine is also fully confirmed by the international usage and constant legislation of the different States of the European continent, by which crimes in general, or certain specified offences against the municipal code, committed by a citizen or subject in a foreign country, are made punishable in the courts of his

own.1

trade and

Laws of trade and navigation cannot affect foreign. Laws of ers, beyond the territorial limits of the State, but they navigation. are binding upon its citizens, wherever they may be. Thus, offences against the laws of a State, prohibiting or regulating any particular traffic, may be punished by its tribunals, when committed by its citizens, in whatever place; but if committed by foreigners, such offences can only be thus punished when committed within the territory of the State, or on board of its

1 Fœlix, Droit International Privé, §§ 510-532. See American Jurist, vol. xxii, p. 381-386.

vessels, in some place not within the jurisdiction of any other

State.

Extradition of cri

The public jurists are divided upon the question, how minals. far a sovereign State is obliged to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes committed in another country, upon the demand of a foreign State, or of its officers of justice. Some of these writers maintain the doctrine, that, according to the law and usage of nations, every sovereign State is obliged to refuse an asylum to individuals accused of crimes affecting the general peace and security of society, and whose extradition is demanded by the government of that country within whose jurisdiction the crime has been committed. Such is the opinion of Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth, Schmelzing, and Kent.1 According to Puffendorf, Voet, Martens, Klüber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeyer, and Heffter, on the other hand, the extradition of fugitives from justice is a matter of imperfect obligation only; and though it may be habitually practised by certain States, as the result of mutual comity and convenience, requires to be confirmed and regulated by special compact, in order to give it the force of an international law. And the lastmentioned learned writer considers the very fact of the existence of so many special treaties respecting this matter as conclusive evidence that there is no such general usage among nations, constituting a perfect obligation, and having the force of law properly so called. Even under systems of confederated States, such as the Germanic Confederation and the North American Union, this obligation is limited to the cases and conditions mentioned in the federal compacts.3

1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xi. §§ 3-5. Heineccius, Prælect. in Grot. j. t. Burlamaqui, tome ii. Part IV. ch. 3, §§ 23–29. Vattel, liv. ii. ch. 6, §§ 76, 77. Rutherforth, Inst. of Nat. Law, vol. ii. ch. 9, p. 12. Schmelzing, Systematischer Grundriss des praktischen Europäischen Völkerrechts, § 161. Kent's Comm. vol. i. pp. 36, 37, 5th ed.

2 Puffendorf, Elementa, lib. viii. cap. 3. §§ 23, 24. Voet, de Stat. § 11, cap. 1, No. 6. Martens, Droit des Gens, liv. iii. ch. 3, § 101. Klüber, Droit des Gens, Part. II. tit: 1, ch. 2, § 66. Leyser, Meditationes ad Pandect. Med. 10. Kluit, de Deditione Profugorum, § 1, p. 7. Saalfeld, Handbuch des positiven Völkerrechts, § 40. Schmaltz, Europäisches Völkerrecht, p. 160. Mittermeyer, das deutsche Strafverfahren, Theil i. § 59, pp. 314-319.

3 Mittermeyer, Ibid.

The negative doctrine, that, independent of special compact, no State is bound to deliver up fugitives from justice upon the demand of a foreign State, was maintained at an early period by the United States government, and is confirmed by a considerable preponderance of judicial authority in the American courts of justice, both State and Federal.1

The Constitution of the United States provides, (art. 4, s. 2,) that "a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

By the 10th article of the treaty concluded at Washington on the 9th August, 1842, between the United States and Great Britain, it was "agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons, who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: Provided, That this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and

1 See Mr. Jefferson's Letter to M. Genet, Sept. 12, 1793. The decision of Mr. Chancellor Kent, in re Washburn, Johnson's Ch. Rep. vol. iv. p. 166, is counterbalanced in that of Chief Justice Tilghman, in Respublica v. Deacon, Sergeant & Rawle's Rep. vol. x. p. 125; by that of Mr. Chief Justice Parker, in Respublica v. Green, Massachusetts Rep. vol. xvii. pp. 515-548; and by the judgment of the Supreme Court of the United States, in Holmes v. Jennison, Peters's Rep. vol. xiv. p. 540.

considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitives. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.".

By the convention concluded at Washington on the 9th November, 1843, between the United States and France, it was agreed:

"Art. 1. That the high contracting parties shall, on requisitions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other: Provided, That this shall be done only when the fact of the commission of the crime shall be so established, as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial, if the crime had been there committed.

"Art. 2. Persons shall be so delivered up who shall be charged, according to the provisions of this convention, with any of the following crimes, to wit: murder, (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning,) or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzlement by public officers, when the same is punishable with infamous punishment.

"Art. 3. On the part of the French government the surrender shall be made only by authority of the Keeper of the Seals, Minister of Justice; and on the part of the Government of the United States, the surrender shall be made only by the authority of the Executive thereof.

"Art. 4. The expenses of any detention and delivery, effected in virtue of the preceding provisions, shall be borne and defrayed by the government in whose name the requisition shall have been made.

"Art. 5. The provisions of the present convention shall not