disturbed, or strangers are affected. The judgment in Wildenhus' Case decides that such an exception must not be taken in a purely material sense, but must be deemed to include offences which, even though committed wholly on board and primarily affecting only members of the crew, are yet of so grave a character as to shock the moral sense of the community and to impose on the territorial Power a duty to take steps for their punishment.

GENERAL NOTES.-Private Vessels in Foreign Ports and Territorial Waters. Although there is some difference both of opinion and of practice as to the precise position occupied by private vessels whilst in foreign ports with respect to jurisdiction (p), yet on certain points both opinion and practice appear to concur. On the one hand, such vessels are undoubtedly subject to local dues; they are subject to all local revenue, harbour, and quarantine regulations; and they are amenable to the local law and the process of the local Courts in respect of all matters relating to the title to the vessel, liability for debt, damage, salvage, or the infringement of local regulations (q). Members of the crew are also liable for offences committed on shore, or even on board if the subjects or interests of the territorial Power are affected; and process against them may be served, and arrests effected, on board, to the same extent as on vessels belonging to the territorial Power. Nor is there any right of asylum, either as regards political offenders or other fugitives from justice (r). On the other hand, it is, as we shall see, not usual for the local authorities to intervene in minor matters relating to the internal discipline and order of the ship; the regulation of these matters being left to the ship's officers, subject to the supervision of the consul, and in accordance with the law of the country to which the ship belongs. The law of the flag also continues to govern civil rights and obligations arising out of matters occurring on board, either as between persons on board or in relation to the ship, except in so far as, in cases of contract, some other law may be contemplated by the parties (s).

Practice of States with respect to Jurisdiction.—It it mainly with respect to the exercise of criminal and police jurisdiction that the practice of States differs. (1) Some States follow primarily the rule that both the vessel and those on board are subject to the law of the port. So Great Britain, with respect to foreign vessels in British ports, assumes the territorial law to be applicable; but does not ordinarily interfere in matters of internal discipline and administration unless help is asked (t). With respect to British ships in foreign ports,

(p) Hall, 211; Oppenheim, i. 339; Charteris, British Year Book of International Law, 1920-21, 45.

(q) But as to mail ships, see p. 294, infra.

(r) As to the right of arrest on board foreign merchant vessels, see Scott, 273 n; and Taylor, 314.

(s) Hall, Foreign Jurisdiction, 80; and as to contracts, Lloyd v. Guibert

(L. R. 1 Q. B., at p. 128).

(t) Reg. v. Keyn (L. R. 2 Ex. D., at pp. 82, 83, 93, 202). But in any case where an appeal is made to the Courts the local law must be applied; see Piggott, Nationality, ii. 21. The present tendency, moreover, is to apply to foreign vessels all such local regulations as may be essential to safety; see the Merchant Shipping Act, 1906.

Great Britain recognises the primary claim of the territorial law; but asserts a concurrent right of jurisdiction over offences committed on board, whether by British subjects or other persons (u); and British consuls are empowered by statute to take the necessary steps for giving effect to this jurisdiction (x). The practice of the United States appears to be similar, except where otherwise provided by treaty or convention (y). (2) Other States, by their municipal law, and apart from convention, disclaim jurisdiction not only in matters of internal discipline, but also over crimes and lesser offences committed by the crew against each other; reserving, however, a right to intervene in cases where help is asked or the peace of the port is disturbed, or strangers are affected. Such States also claim a like jurisdiction over their own vessels whilst in foreign ports, in so far as this is compatible with the territorial law. The French practice, although not always consistent, appears in the main to coincide with this view (2). (3) Finally, as between some States it has been sought to obviate the inconvenience which might otherwise arise from a conflict of jurisdiction, by means of consular conventions. The general effect of these, as between the parties, is to bestow on the consul of the State to which the vessel belongs an exclusive control over all matters relating to the internal order of the vessel, together with a limited right of jurisdiction both in civil and criminal cases, and a right to revoke the assistance of the local authorities in its exercise; but to reserve the jurisdiction of the territorial Power in cases where the public order or the peace of the port or strangers are affected (a). But although such a waiver of the local jurisdiction is in itself reasonable and convenient, it cannot, so far, be regarded as obligatory apart from convention (b). Nor is it always easy to determine the precise scope of these exceptions to the territorial jurisdiction, even when established by convention. Hence, until the question of jurisdiction is settled by general international agreement, it would seem that, in all cases of doubt or conflict, the only safe and true rule is that the law of the flag must be deemed to operate in subordination of the law of the port (c).

Private Vessels passing through Foreign Territorial Waters.-Private vessels whilst passing through foreign territorial waters are theoretically in the same legal position; but in practice the territorial Power does not exercise its jurisdictional rights except in cases where its revenue,

(u) And this applies equally where the vessel is lying in foreign territorial waters other than ports; see Reg. v. Carr (10 Q. B. D. 76); Reg. v. Anderson (L. R. 1 C. C. R. 161); 24 & 25 Vict. c. 94, s. 7; c. 96, s. 115; c. 97, s. 72; the Merchant Shipping Act, 1894, ss. 686, 687; and 5 Edw. 7, c. 10, s. 1.

(x) See the Merchant Shipping Act, 1894, s. 689, although the exercise in foreign countries of some of the powers conferred, as well as the exercise of the jurisdiction conferred by ss. 480-486 on Naval Courts, would

appear to be of questionable validity; Piggott, Nationality, ii. 30 and 31.

(y) See Wharton, Dig. i. 131; Taylor, 311 et seq.; and In re Ross (140 U. S. 453; Scott, 238).

(z) See Ortolan, Diplomatie de la Mer. i. 271, and Annexe J. p. 445; Hall, 212; Taylor, 312.

(a) See p. 290, supra. In this way the jurisdiction of the consul, which is otherwise only voluntary, is greatly enlarged.

(b) Hall, 214.

(c) Piggott, Nationality, ii. 17, 21.

fishery, or quarantine laws are infringed, or where the act of the vessel or those on board involves some injury to persons or property outside the vessel herself (d).

Mail Ships. As between particular countries, moreover, certain exemptions from the local jurisdiction, varying in extent, are sometimes conceded to mail ships (e). So, in the United Kingdom the Mail Ships Act, 1891, enables certain privileges to be granted by convention to ships engaged in the postal service; and an exempted mail ship” (ƒ) may be freed from liability to arrest or detention, whilst the arrest even of persons on board can only be effected subject to the observance of certain conditions (g). And a convention on these terms had in fact been entered into between Great Britain and France in 1890 (h).

Vessels putting into a Foreign Port under Constraint.-It is sometimes asserted that private vessels putting into a foreign port in consequence of duress or under stress of weather are by that fact alone exempted from the local law and local jurisdiction. Such a contention was put forward by the United States Government in the case of the Creole. The latter was an American vessel, carrying a cargo of slaves, and bound for New Orleans. In the course of the voyage the slaves rose in revolt, murdered a passenger, and wounded the captain and several of the crew, and then forced the latter to put into the British port of Nassau. The British authorities, whilst imprisoning those concerned in the murder, refused to interfere with the freedom of the others, on the ground that the moment they came into British territory they became free. On appeal by the owners to their Government, the AttorneyGeneral of the United States gave an opinion to the effect that "if a vessel were driven by stress of weather, or forced by vis major, or, short, compelled by any overruling necessity, to take refuge in the ports. of another nation, she was not to be considered as subject to the municipal law of the latter, so far as related to any penalty, prohibition, tax, or incapacity that would otherwise be incurred by entering such port, provided she did nothing to violate the municipal law during her stay ; and this principle, it was contended, was not only a principle of the law of nations, but had also been recognised by English law (i). In the result the matter was submitted to arbitration, and an award given against the British Government (k). In the case of the Industria the British law officers also expressed the view that a foreign vessel carrying slaves which had put into a British port in distress was exempt from seizure by the local authorities; even though she might

(d) See Hall, 214; and as to the British practice under the Territorial Waters Jurisdiction Act, 1878, ss. 2 and 3, and p. 141, supra.

(e) For an example of the concession of the full privilege of public vessels to mail ships by the local municipal law, see Piggott, Nationality, ii. 15 n.

(f) This being a ship subsidised for the execution of the postal service by a foreign State, which has given security to meet local claims.

in

(g) The Act may also be applied to British colonies; see 54 & 55 Vict. c. 31, ss. 4 and 5.

(h) The Act has a retrospective operation; see Piggott, Nationality, ii. 16; Ferguson, i. 448.

(i) The reference being to certain provisions of the Navigation Acts previously in force; see Opns. of U.S. A.-G. iv. 98.

(k) Parl. Papers, 1843, vol. xi.; and for a criticism of the award, Scott, pp. 252, 255 n.

have been seized by a British cruiser on the sea, under the treaty with Spain (1). But despite these opinions, and notwithstanding that this principle is frequently cited with approval, it would seem that such an immunity is not well founded, or in any sense obligatory; and that whilst putting into port under constraint might be a good ground in comity for excusing such infringements of local regulations as were due to the exigencies of her position (m), it would certainly not carry any legal right to exemption from the local law or local jurisdiction. Nor would such an excuse, in any case, serve to exempt a vessel from the consequences of offences previously committed in violation of the law of nations (n).

PIRACY, AND ACTS ANALOGOUS THERETO.

THE UNITED STATES v. SMITH.

[1820; 5 Wheat. 153.]

Case.] THE prisoner, Thomas Smith, had formed one of the crew of a private armed vessel commissioned by the Government of Buenos Ayres, a colony then at war with Spain. Smith and others of the crew, when in the port of Margaritta, mutinied and left the vessel. Thereafter, having seized by violence another private armed vessel lying in the same port, they proceeded to sea without any document or commission, and in the course of their cruise plundered and robbed a Spanish vessel. For this Smith was subsequently indicted for piracy before the Circuit Court of Virginia. The proceedings were taken under an Act of Congress of the 3rd of March, 1819, which provided that if any person should commit on the high seas the crime of piracy, as defined by the law of nations, and should afterwards be brought into or found in the United States, he should, on conviction, be punished with death. A special verdict was returned by the jury, and the Circuit Court being divided in opinion as to whether the facts as found amounted to piracy by the law of nations, the question was reserved for the decision of

(1) Forsyth, Const. Cases, p. 399; see also The Fortuna (5 C. Rob. 27); The Jonge Jacobus Baumann (1 C. Rob. 243).

(m) Such as harbour or quarantine rules.

(n) The

Carlo Alberto (Sirey,

Recueil, 32, pt. i. 578).

the Supreme Court. In the result it was held that such facts amounted to piracy by the law of nations, and that such offence was therefore punishable under the Act of Congress.

Judgment.] In the judgment of the Court, which was delivered by Story, J. (Livingstone, J., diss.), the first question considered was whether an Act of Congress which merely referred to the law of nations for a definition of piracy was a constitutional exercise of the powers of Congress to define and punish piracy. As to this it was held that Congress might equally well define an offence by using a term of known and definite meaning, as by an express examination of all the particulars included in that term. The next point considered was, whether the crime of piracy was defined by the law of nations with reasonable certainty. As to this it was held that the law of nations must be ascertained by consulting the works of jurists writing professedly on public law; or from the general usage and practice of nations; or from judicial decisions recognising and enforcing that law. There was scarcely a writer on the law of nations who did not allude to piracy as a crime of a settled and determinate nature; and whatever might be the diversity of definitions in other respects, all writers concurred in holding that robbery or forcible depredation upon the sea, animo furandi, amounted to piracy. The same doctrine was held by all the great writers on maritime law; as well as by those on the common law. Amongst others, Sir Leoline Jenkins observed that a robbery, when committed on the sea, is what we call piracy." And the general practice of all nations in punishing all persons, whether natives or foreigners, who had committed this offence against any persons with whom they were in amity was a conclusive proof that the offence was supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. With respect to a final objection as to the sufficiency of the special verdict, it was laid down that inasmuch as the jury had found that the prisoner was guilty of the plunder and robbery charged in the indictment, together with certain additional facts from which it was manifest that he and his associates were at the time freebooters on the sea, not under the acknowledged

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