tion to Mr. Mizner, Minister to Central America, asserted that in Spanish-American countries it was the habit of the territorial sovereign before making an arrest, to apply to the diplomatic or consular officer of the State to which the vessel belonged for his consent, and to furnish such officer with proof of the nature of the crime alleged; that the arrest was never made when the representative of the United States withheld his consent or the demand wore a political aspect; that powerful causes operated in favor of the exception that had arisen, exempting political offenders from local jurisdiction.1 Mr. Blaine rebuked the Minister for having intervened, by authorizing, in compliance with demands of Guatemala, the seizure on an American vessel, at a Guatemalan port, of General Barrundia, a passenger in transit from Mexico to Panama, who had been charged with the commission of political offenses against Guatemala.2 General Barrundia had resisted capture, and had been killed. By reason of his intervention, the Minister was recalled.3

In 1893, one Bonilla, a native of Honduras, boarded an American steamer in Nicaragua bound for Guatemala. Upon the arrival of the vessel at Amapala, Honduras, his surrender was duly demanded of the captain, on the ground that Bonilla had been "sentenced by the Courts of the Republic." The captain, after consultation with Mr. Baker, the American Minister to Nicaragua, who was himself a passenger on the vessel, refused to comply. The captain was later warned that if he attempted to leave port before delivering Bonilla, the vessel would be fired upon. The vessel, having previously received her clearance papers, and still retaining custody of the fugitive, proceeded to leave port and was fired upon, but without effect. The United States vigorously protested against this action. The Government of Honduras promptly gave assurances of disavowal and regret.1

1 Communication of Nov. 18, 1890, For. Rel. 1890, 123, 133-141, Moore, Dig., II, 859-862, and 872-876. Cf., also, Mr. Rockhill, Third Assist. Secy. of State, to Mr. Williams, Consul-General at Havana, Sept. 5, 1895, 149 MS. Inst. Consuls, 433, Moore, Dig., II, 862.

2 Relative to the impropriety of consular intervention, see Mr. Bayard, Secy. of State, to Mr. Thompson, Minister to Haiti, Nov. 7, 1885, MS. Înst. Haiti, II, 523, Moore, Dig., II, 858.

President Harrison, Annual Message, Dec. 1, 1890, For. Rel. 1890, iii, Moore, Dig., II, 871. In that document it is stated that General Barrundia had failed in a revolutionary attempt to invade Guatemala from Mexican territory, and that his seizure was attempted in order that he might be tried "under what is described as martial law."

See Mr. Mizner's defense in For. Rel. 1890, 144, contained in part in Moore, Dig., II, 876.

For. Rel. 1893, 154 et seq., Moore, Dig., II, 880-881.

ASYLUM ON MERCHANT VESSELS

[§ 225

Mr. Gresham, Secretary of State, on Dec. 30, 1893, enunciated the general principles which he believed to be applicable in such cases. He declared that a merchant vessel in a foreign port was within the local jurisdiction with respect to offenses and offenders against the local laws; that as the doctrine of asylum had "no recognized application" to such a vessel, the master was without discretion as to the character of the offense charged; that permitting the arrest of a passenger was not analogous to proceedings in extradition; that the master was not competent to determine whether the evidence was sufficient to warrant arrest and commitment for trial, or to impose conditions upon arrest; that his function was merely passive, being confined to permitting the regular agents of the law, on exhibition of lawful warrant, to make the arrest; that American diplomatic and consular officers were incompetent to order surrender by way of quasiextradition. While the Secretary declared that arbitrary attempts to capture a passenger by force, without regular judicial process, might call for disavowal when the resort to violence endangered the lives of innocent men and the property of a friendly nation, he was far from asserting that there was a limitation of the right of jurisdiction over political refugees peculiar to Spanish American States. It is believed that Mr. Gresham correctly stated the requirements of the law. It must be clear that the attempt to prevent an enlightened State, whether of Spanish America or Europe, from exercising as complete jurisdiction over foreign vessels and their occupants within local ports as is commonly and properly enjoyed by maritime powers generally, betokens disrespect for the territorial sovereign, imputing to it inability to administer justice, and breeding contempt for its legitimate authority.

Over the fugitive from the justice of a foreign State who is arrested within the territory of a third State and brought into a local port, in the custody of foreign agents on a foreign merchant vessel, in transit to the place of trial, the territorial sovereign

1 Communication to Mr. Huntington, For. Rel. 1894, 296, Moore, Dig., II, 880. "The letter to Mr. Huntington was communicated by Mr. Gresham, Secretary of State, to Mr. Baker, United States Minister to Nicaragua, Jan. 31, 1894. March 22, 1898, Mr. Sherman, Secy. of State, instructed Mr. Merry, Mr. Baker's successor, that he was to be guided by it." Moore, Dig., II, 882, citing MS. Inst. Cent. Am., XXI, 290.

Relative to the unwillingness of the United States "to acquiesce in the arbitrary and forcible violation of its flag by a merely military power, without due and regular warrant of law and not in conformity with the ordinary course of justice", see Mr. Foster, Secy. of State, to Mr. Scruggs, Minister to Venezuela, Sept. 8, 1892, For. Rel. 1892, 623, Moore, Dig., II, 864.

may doubtless assert control and justly demand that the individual be set at liberty.1

(3)

§ 226. The Marginal Sea. Foreign Merchant Vessels. The extent of the jurisdiction of a State over foreign merchant vessels within territorial waters constituting the maritime belt or marginal sea, appears to be proportional to the degree of interest with which the territorial sovereign regards the conduct of such ships or of their occupants.2

It is believed that over the vessel at anchor within such waters a State may, on principle, exercise as broad a jurisdiction as if the ship were docked in a local port.3 In the assertion of the right, similar occurrences would not, however, be likely to arouse equal In the case of the vessel anchored within the marginal sea, its position with respect to the adjacent land and its contemplated movements might impel the territorial sovereign to ignore an act the commission of which on board of a vessel in port would at once awaken interest and lead to the instigation of criminal proceedings.

With respect to what occurs on the passing ship, not bound for a local port, the concern of the territorial sovereign is less vital, and its right of jurisdiction less broad. According to Article VI of the Rules on the Definition and Régime of the Territorial Sea, adopted by the Institute of International Law in 1894, crimes and offenses committed on board of foreign ships passing through the territorial sea by persons on board of them, against persons or things on board of the same ships, are, as such, outside of the jurisdiction of the littoral State, unless they involve the violation of the rights or interests of that State or of its inhabitants (ressortissants) not forming part of the crew or passengers.*

The territorial sovereign must itself be the judge of what violates its own rights or interests. It is not, however, likely to find occasion or be disposed to charge a violation thereof, unless apprised of the commission of a grave offense arousing in fact the in

1 See Extradition, infra, § 341.

2 See, in this connection, Westlake, 2 ed., I., 266–267.

According to Art VIII of the Rules on the Definition and Regime of the Territorial Sea, adopted by the Institute of International Law in 1894: "Ships of all nationalities are subject to the jurisdiction of the littoral State by reason of the simple fact that they are in the territorial waters, unless they are only passing through them." Annuaire, XIII, 330, J. B. Scott, Resolutions, 114.

4 Annuaire, XIII, 329, J. B. Scott, Resolutions, 114.

IN GENERAL

[§ 227 terest of persons on shore or elsewhere outside of the vessel and within its territory. If a passing ship or an occupant thereof violates the local law and with respect to a stranger to the vessel, the territorial sovereign may fairly assert jurisdiction.

Whether the statutes of the littoral State are applicable to occurrences taking place within the marginal sea, and especially to acts committed on foreign passing ships, and whether also the local tribunals are clothed with requisite jurisdiction for purposes of adjudication, present questions of municipal rather than international law. They involve the inquiry as to the extent to which the territorial sovereign has seen fit to exercise its legislative power.1 Inasmuch as the marginal sea is a part of the territory of the adjacent State, the application of local laws to acts committed within such waters would not seem to be dependent upon a specific declaration of legislative intention. The rule of construction actually observed would, however, be one attributable to the municipal law.

The term "high seas" may be said to refer, in international law, to those waters which are outside of the exclusive control of any State or any group of States, and hence not regarded as belonging to the territory of any of them.2 The ocean until it envelops the shores of a littoral State and constitutes its maritime belt, is not a part of the domain of any territorial sovereign. No State possesses, therefore, the right to determine the lawfulness of acts there committed unless taking place on board of one

In the case of Reg. v. Keyn, L. R. 2 Ex. Div. 63, the precise question was whether a particular tribunal (the Central Criminal Court) had jurisdiction in a case of homicide committed by a foreign master on a foreign ship passing within three miles of the British coast. It was held that the Central Criminal Court lacked jurisdiction. While it was declared in certain dicta that in the absence of Parliamentary action the open seas adjacent to the coast were not to be regarded as a part of Her Majesty's dominions, it was not suggested that if the sovereign had seen fit to treat such waters as a part of the national domain, persons on foreign merchant vessels therein would not be amenable to the local laws. As a result of the decision the British Territorial Waters Jurisdiction Act was passed in 1878.

2 See Second Court of Commissioners of Alabama Claims, Stetson v. United States, No. 3993, class 1, Moore, Arbitrations, IV, 4335, Moore, Dig., II, 885. Compare the special signification attached to the term "high seas" within $5346 of the Revised Statutes, in the case of United States v. Rodgers, 150 U. S. 249. See, also, Dana's Wheaton, 169-170; Woolsey, 6 ed., 72-76; J. B. Moore, Principles of American Diplomacy, 1918, Chap. III.

of its own ships, or unless the society of maritime States unites to confer upon it authority to do so. The relation between a vessel and the country to which it belongs is sufficiently close to justify the latter to assert a right of jurisdiction with respect to the ship and its occupants.2 Doubtless the society of nations may agree to impose upon a vessel and its crew a duty not to commit certain acts on the high seas, such as those of piracy; and it may empower the individual State to punish, in behalf of the society, those who defy the prohibition. It is significant, however, that maritime States appear to be reluctant to impose generally such burdens or to create such sanctions. Conversely, there happily remains widespread acceptance of the principle that the free and unmolested enjoyment of the high seas in times of peace is the privilege of every ship sailing under the flag of a civilized State.3 If a State may, under any circumstances, excuse its assertion of jurisdiction with respect to the conduct of a foreign vessel and its foreign occupants on the high seas, it must be due to the fact that the ship or those individuals were participating in some activity itself internationally illegal, and, therefore, forbidden by the family of nations, or to the presence of extraordinary circumstances which, for the moment or for the time being, justified disregard of the normal obligation of restraint.

(2)

§ 228. Jurisdiction Resulting from Acts of Self-Defense. It has been observed that on grounds of self-defense a State may under certain circumstances not unreasonably exercise its

1 Mr. Blaine, Secy. of State, to Mr. Ryan, Minister to Mexico, Nov. 27, 1889, For. Rel. 1889, 614, Moore, Dig., I, 931; Award of Dr. F. de Martens, Arbitrator, in the case of the Costa Rica Packet, Moore, Arbitrations, V, 4952.

A State not infrequently punishes its own nationals on account of acts committed on foreign vessels on the high seas. In so doing, the sovereign merely imposes a penalty for disobedience to its own command, declining to respect the legal quality, whether lawful or unlawful, which the State of the vessel attaches to the act, and, at the same time, without denying the right of that State to exercise jurisdiction should the actor enter its domain. See Mr. Bayard, Secy. of State, to Mr. Connery, Chargé at Mexico, Nov. 1, 1887, For. Rel. 1887, 751, 754, Moore, Dig., I, 933, note; Earl Granville, Secy. of Foreign Affairs, to Mr. Lowell, American Minister to Great Britain, June 8, 1880. For. Rel. 1880, 481, Moore, Dig., I, 934.

2 Mr. Marcy, Secy. of State, to Chevalier Bertinatti, Sardinian Minister, Dec. 1, 1858, MS. notes to Italian States, VI, 178, Moore, Dig., I, 930; Mr. Fish, Secy. of State, to Mr. Schenck, Minister to England, Nov. 8, 1873, MS. Inst. Great Britain, XXIII, 431, Moore, Dig., I, 931; Opinion of Mr. Cushing, Atty.-Gen., 8 Ops. Attys.-Gen., 73; Crapo v. Kelly, 16 Wall, 610; Wilson v. McNamee, 102 U. S. 572, 574.

3 President Grant, Annual Message, Dec. 1, 1873; Richardson's Messages, VII, 241, Moore, Dig., II, 897.