§ 11. Jurisdic 4. Both the public and private vessels of every nation, on the high seas, and out of the territorial limits of any other tion of the state, are subject to the jurisdiction of the state to which state over they belong. Vattel says that the domain of a nation extends to all its just possessions, and by its possessions we are not only to understand its territory, but all the rights (droits) it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory, though he admits the right of search for contraband and enemy's property. Grotius holds that sovereignty may be acquired over a portion of the sea, ratione personarum, ut si classis qui maritimis est exercitus, aliquo in loco maris se habeat. But, as one of his commentators has observed, though there can be no doubt about the jurisdiction of a nation over the persons which compose its fleets when they are out at sea, it does not follow that the nation has jurisdiction over any portion of the ocean itself. It is not a permanent property which it acquires, but a mere temporary right of occupancy in a place which is common to all mankind to be successively used by all as they have occasion.24 This jurisdiction which the nation has over its public and private vessels on the high seas, is exclusive only so far as respects offences against its own municipal laws. Piracy and other offences against the law of nations, being crimes not against any particular state, but against all mankind, may be punished in the competent tribunal of any country where the offender may be found, or into which he may be carried, although committed on board a foreign vessel on the high seas.25 Though these offences may be tried in the competent court of any nation having, by lawful means, the custody of the offenders, yet the right of visitation and search does not exist in time of peace. This right cannot be employed for the purpose of executing upon foreign vessels and persons on 24 Vattel, liv. ch. 19, § 216. liv. ii, ch. 7, § 80. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. iii. § 13. Rutherforth's Inst. vol. ii. b. 2, ch. 9, §§ 8, 19. 25 Sir L. Jenkins' Works, vol. i. p. 714. its public and private vessels on the high seas. the high seas the prohibition of a traffic, which is neither piratical, nor contrary to the law of nations, (such, e. ́g. as the slave trade,) unless the visitation and search be expressly permitted by international compact.26 Every state has an incontestable right to the service of all its members in the national defence, but it can only give effect to this right by lawful means. Its right to reclaim the military service of its citizens can only be exercised within its own territory, or in some place not subject to the jurisdiction of any other nation. The ocean is such a place, and any state may unquestionably there exercise, on board its own vessels, its right of compelling the military or naval services of its subjects. But whether it may exercise the same right, in respect to the vessels of other nations, is a question of more difficulty. In respect to public commissioned vessels belonging to the state, their entire immunity from every species and purpose of search is generally conceded. As to private vessels belonging to the subjects of a foreign nation, the right to search them on the high seas, for deserters and other persons liable to military and naval service, has been uniformly asserted by Great Britain, and as constantly denied by the United States. This litigation between the two nations, who by the identity of their origin and language are the most deeply interested in the question, formed one of the principal objects of the late war between them. It is to be hoped that the sources of this controversy may be dried up by the substitution of a registry of seamen, and a system of voluntary enlistment with limited service, for the odious practice of impressment which has hitherto prevailed in the British navy, and which can never be extended, even to the private ships of a foreign nation, without provoking hostilities on the part of any maritime state capable of resisting such a pretension.27 26 Dodson's Adm. Rep. vol. ii. p. 238. The Louis. Wheaton's Rep. vol. x. pp. 122, 123. The Antelope. Edinburgh Review, vol. xi. art. 1. Mr. Canning's Letter to Mr. Monroe, Sept. 23, 1827. American State Papers, vol. vi. p. 103. IV. The municipal laws and institutions of any state may operate beyond its own territory, and within the territory of another state, by special compact between the two states. Such are the treaties by which the consuls and other commercial agents of one nation are authorized to exercise, over their own countrymen, a jurisdiction within the territory of the state where they reside. The nature and extent of this peculiar jurisdiction depends upon the stipulations of the treaties between the two states. Among Christian nations it is generally confined to the decision of controversies in civil cases arising between the merchants, seamen, and other subjects of the state in foreign countries; to the registering of wills, contracts, and other instruments executed in presence of the consul; and to the administration of the estates of their fellow-subjects deceased within the territorial limits of the consulate. The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mohammedan countries, exercise both civil and criminal jurisdiction over their countrymen, to the exclusion of the local magistrates and tribunals. This jurisdiction is subject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limited to the infliction of pecuniary penalties, and in offences of a higher grade, the consular functions are similar to those of a police magistrate, or juge d'instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home to his own country for trial.28 Every sovereign state is independent of every other in the exercise of its judicial power. This general position must, of course, be qualified by the exceptions to its application arising out of express compact, such as conventions with foreign states and acts of confederation, by which the state may be united in a league with other states for some common purpose. By the stipulations of these compacts it may part with certain portions of its 28 De Steck, Essai sur les Consuls, sect. vii. §§ 30-40. Pardessus, Droit Commercial, pt. vi. tit. 6, ch. 2, § 2. ch. 4. §§ 1, 2, 3. § 12. Consular jurisdiction. § 13. Independence of the state as to its judicial power, § 14. Extent of Laws of judicial power, or may modify its exercise with a view to the Subject to these exceptions, the judicial power of every I. The judicial power of every independent state, then, extends, with the qualifications mentioned,— 1. To the punishment of all offences against the municipal laws of the state, by whomsoever committed, within the territory. 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. 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. It is evident that a state cannot punish an offence against its 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 2 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. Laws of trade and navigation cannot affect foreigners beyond the territorial limits of the state, but they are binding upon its citizens wherever they may be. Thus offences against the laws of a state prohibiting or regulating any par ticular 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 vessels in some place not within the jurisdiction of any other state. Laws of And the laws of treason, which are binding on all persons treason. resident within the territory, since such persons owe a temporary allegiance to the state, may be applied to foreigners if committed within its territory; but these laws may be applied to citizens, in whatever place the offence is committed, since their allegiance travels with them wherever they go. cial domi A distinction is to be noticed respecting the operation of Commerlaws of trade upon citizens resident in a foreign country, that cil. where it is a mere commercial regulation permitting or prohibiting a certain trade, the party resident abroad may have the benefit of his commercial domicil, so far as to exempt him from the operation of the municipal law of his own country, whilst his former allegiance still continues. But if the statute creates a criminal offence, and visits it with personal penalties expressly applicable to all the subjects of the state, it will apply to such offences committed by them when domiciled in a foreign country, by the laws of which the act constituting the crime is not prohibited. tion of cri No sovereign state is bound, unless by special compact, to Extradideliver up persons, whether its own subjects or foreigners, minals. charged with or convicted of crimes committed in another country, upon the demand of a foreign state or its officers of justice. The extradition of persons charged with or convicted of criminal offences affecting the general peace and security of society is, however, voluntarily practised by certain states as a matter of general convenience and comity,30 The delivering up by one state of deserters from the military or naval service of another also depends entirely upon 30 Vattel, liv. ii. ch. 6, § 76. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. iii. ch. 3, § 101. |