determined by international law; (2) that, as the previous political connection between Koszta and the Austrian Government had, by reason of the circumstances of his emigration and banishment, been, even under the laws of Austria, dissolved, he could not at the time of his seizure be claimed as an Austrian subject, nor could his seizure as such be justified by Austria, either under international law or her treaties with Turkey; (3) that the seizure in its method and circumstances constituted an outrage so palpable that any bystander would have been justified, on elementary principles of justice and humanity, in interposing to prevent its consummation; (4) that there were, however, special grounds on which the United States might, under international law-that being under the circumstances the only criterion-assert a right to protect Koszta; (5) that, although he had ceased to be a subject of Austria and had not become a citizen of the United States, and therefore could not claim the rights of a citizen under the municipal laws of either country, he might, under international law, derive a national character from domicile; (6) that, even if Koszta was not, by reason of his domicile, invested with the nationality of the United States, he undoubtedly possessed, under the usage prevailing in Turkey, which was recognized and sanctioned by international law, the nationality of the United States, from the moment when he was placed under the protection of the American diplomatic and consular agents, and received from them his tezkereh; (7) that, as he was clothed with the nationality of the United States, and as the first aggressive act was committed by procurement of the Austrian functionaries, Austria, if she upheld what was done, became in fact the first aggressor, and was not entitled to an apology for the measures adopted by Captain Ingraham to secure his release; (8) that Captain Ingraham's action was further justified by the information which

he received of a plot to remove Koszta clandestinely, in violation of the amicable arrangement under which he was to be retained at Smyrna while the question of his nationality was pending; (9) and finally, that, as the seizure of Koszta was illegal and unjustifiable, the President could not consent to his delivery to the consul-general of Austria at Smyrna, but expected that measures would be taken to cause him to be restored to the condition he was before he was seized."" 48. Aliens as travellers passing through territory of a State.— Aliens may also come under the jurisdiction of a state, even when not domiciled, while they are within its limits as travellers passing through its territory. The range of jurisdiction is, of course, much more limited than when the alien is domiciled with a more or less permanent tenure of stay. They are, of course, subject to the criminal laws of the state and to the laws regarding the contracts which they make in the course of their travels. In no case, however, are the political rights of such travellers affected by their temporary sojourn in a foreign state.

49.A State has jurisdiction over pirates captured by its vessels. A state has jurisdiction over all pirates seized by its vessels. Piracy is a crime under international law, and as such pirates are outlaws and the enemies of every state, and hence can be arrested by anyone and brought to trial for this offense in any jurisdiction. By the act of piracy the offender and his ship lose not only national character and protection but are placed within the jurisdiction of any state that may through its agent become the captor. By international law the proper punishment is death; but this is not mandatory when any state which by its own law does not award the death penalty. So, too, international law does not require the pur

• Moore's Digest, Vol. 3, pp. 843, 844, 845.

suit and punishment of pirates as a duty. Germany, for instance, by its commercial code does not permit the punishment of pirates who are foreigners committing piracy against foreign vessels.

50. Jurisdiction over the air above the territory of a State.So far it may be said that the territorial possessions of a state consists of land and water. The question, however, has arisen as to the status of the atmosphere above this territory of a state. With the advent and development of wireless telegraphy, aeroplanes, dirigible balloons, etc., the question of the freedom of the air above this territory has arisen. If it should be declared free like the high seas, certain rights of self-protection and defense must be reserved to the states concerned. If the air should be considered, on the other hand, as territorial, the right of innocent passage must be allowed for persons, messages and aerial machines. Naturally, the extent of such aerial jurisdiction will be largely measured by the extent of physical control over the things contained in the atmosphere. A general agreement upon the lines suggested does not seem impracticable."

51. The claim to jurisdiction over foreigners for offenses committed abroad.-A number of states in Europe and America, including France, Germany and Austria, punish foreigners who have committed crimes in foreign jurisdiction against the safety of their states. Russia and Italy with others go further and punish offenses against their individual subjects, such as murder, arson and forgery, though committed in a foreign country by persons of foreign nationality. Of course, the offenders cannot be tried and punished unless they come within the territory of the offended state. This claim has been rigorously contested by the United States and is not enforced by Great Britain nor conceded by British writers. Notwithstanding the opposite opinion held by the other nations, the law and practice of the United States is expressed

9a See Supplementary Chapte..

JURISDICTION OVER OFFENSES ABROAD

49

by Mr. Justice Story of the Supreme Court of the United States in 1824, in the case of the "Apollon" (9 Wheaton 362), to this effect:

"The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction, and, however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted, in construction, to places and persons upon whom the legislature have authority and jurisdiction."

The case of A. K. Cutting comes under this head. Cutting was arrested and imprisoned in Mexico in 1886 for an alleged offense of libel committed in Texas against a Mexican citizen. The Government of the United States protested vigorously against such action and demanded the release of Cutting, which was granted by the Mexican Government after considerable delay. Although the matter cannot be considered as a settled doctrine of international law, there is no doubt as to the settled policy of the United States, as shown above by the opinion of Mr. Justice Story in 1824, and the executive action taken with respect to Mexico in 1886. 52. Exception to the rules about jurisdiction of a State within its territory. Immunities of foreign sovereigns.-There are certain exceptions to the general rule of exclusive jurisdiction of a state over all persons and things within its territory. First among those who are entitled to these exceptions or immunities are foreign sovereigns or heads of a state and their suites.

The exemption of a sovereign or head of a state who is naturally in the position of a guest from arrest, detention, civil process or jurisdiction within a foreign territory is an immunity which largely explains itself as a matter of courtesy due to his official importance and dignity. He possesses this immu

nity while he is in foreign territory in his capacity of a head of a state, and the members of his suite enjoy the same personal immunity as himself. If a sovereign or ruler commits acts against the safety or good order of the state in which he is a guest or visitor, or permits one of his suite to do so, the offended state can request him, or the member of his suite, to leave the limits or, if necessary, to expel him, using only such restraint as will be necessary to accomplish the purpose.

10

The head of a state, however, cannot exercise any jurisdiction of his own within the limits of the state he is visiting even among the members of his suite. If any urgent cases arise in his suite, the persons concerned should be sent home for trial. Should a sovereign ruler travel incognito or lose his official capacity as a head of a state his immunities do not exist; but can be assumed at his pleasure if he retains his position as head of the state. The case of ex-President Castro, of Venezuela, who was removed from his position while travelling in Europe, is an example of a consequent cessation of immunities.

53. Immunities of diplomatic agents and consuls.-A diplomatic representative of a foreign state duly accredited to the state or travelling through the state on his way to or from his post, is entitled to certain immunities from foreign jurisdiction. These immunities, in general, consist of exemption from civil or commercial jurisdiction, from local police regulations, from custom duties and taxes, from religious regulations and from the general exercise of authority over his household. These immunities are extended to the official suite of the representative and to his immediate family.

As Lawrence says, a diplomatic representative, "could not attend to the interests of his country with perfect freedom and absolute fearlessness if he were liable to be dealt with by the

10 F. Snow, ed. by Stockton, p. 21.