local law and subjected to the authority of the officers of the state to which he was sent." "

Consuls are not diplomatic agents, and hence do not require or possess the immunities given to such representatives. They have, as a matter of comity, exemption from military service and quartering, and their official papers are exempt from seizure. By convention, however, and especially in Eastern countries, their rights and privileges are duly extended, and international courtesy often supplements the immunities provided by custom and convention. This matter, and a further consideration of diplomatic representatives will be treated further on.

54. Public armed forces of foreign States on land possess immunity from jurisdiction.-It is universally recognized under the rules of international law that a state must obtain permission before its public armed forces can pass through the territory of another country. In the United States it is customary for such permission to be obtained also from the governors of the separate states of the Union which are concerned. While passing through the territory of a foreign state, this compact military force under its own officers, regulations and discipline has immunity from the jurisdiction of the state. Chief Justice Marshall, in the case of the Schooner Exchange vs. McFadden, expressed the rule of international law in this case as follows:

"A third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it,

"Lawrence's Principles, p. 274, 3d edn.

the purpose for which the free passage was granted, could be defeated and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require.' 55. Ships of war of foreign States possess immunity from the jurisdiction of a State." If there be no prohibition the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and remain in them while allowed to remain, under the protection of the government of the place.'

12

13

A vessel of war when in a foreign friendly port is ordinarily exempt from the jurisdiction of such port so far as acts beginning and ending on board of that vessel is concerned. This immunity is extended to its boats, tenders, rafts and other appurtenances. The ship must, however, respect the administrative rules of the port, such as to pilotage when used, to places and methods of anchoring, regulations for quarantine and the disposal of refuse, etc., etc.

Lampredi, an able Italian jurist, in referring to the immunity of a vessel of war under such circumstances from the local jurisdiction of a foreign port, says, "Such a ship of war cannot exist and be governed without the perpetual duration of military command, which consequently continues to be exercised in all of its extent within the vessel more in

12 Scott's Cases, pp. 211, 212.

13

Exchange vs. McFadden, Scott's Cases, p. 213.

virtue of the concession of the prince who receives the ship than from any right on the part of the captain, much less in virtue of any territorial right."

A vessel of war is exempt from the visitation and search of the officials of the customs of a foreign port. By the regulations of the United States Navy, commanding officers are strictly forbidden to allow any examination whatever of their ships or boats by foreign officers of the customs. They are also forbidden to permit their vessels to be searched by any person representing a foreign state, nor can any of the officers or crew be taken out of her, so long as they have the power to resist. If force is used it is to be repelled."

When a vessel of war is within the jurisdiction of a foreign. state, either in port or within the marine league, the commanding officer, of course, retains his usual authority to maintain order and dicipline, and to establish the necessary tribunals to punish offenses committed on board or on shore by those under his command in violation of discipline or the laws of the service. It is not legal, however, in the United States Navy to have such courts hold session on shore in foreign territory. In the case, however, of crime committed on board by persons not belonging to the ship or the naval service of his country, the commanding officer may with propriety deliver the parties concerned to the authorities of the port. If the offender and the injured person are both citizens or subjects of the state within which the port is situated it is his duty in ordinary cases to deliver the criminal to the local authorities.

56. As to refugees from the port.-The same principle applies to ordinary criminals seeking to escape the punishment of their crimes by taking refuge on board foreign vessels of war. It is wrong to harbor them; the privilege of refuge is

14 Par. 2, Art. 2045 and Art. 2046, Navy Reg., 1913.

only for fugitive slaves or persons who are pursued for political offenses alone. The surrender, however, is in all cases at the discretion of the commanding officer. The accused person cannot be taken out of the ship without his order or permission. Under no circumstances have the local authorities the right of seizure or arrest on board of foreign vessels of war. Delivery of the person may be requested, but in case of refusal further proceedings with a view to the return of the offenders must be by means of the usual diplomatic channels.

57. Deserters not to be arrested on shore in foreign jurisdiction. No officer or man can be allowed to violate the jurisdiction on shore by arresting or attempting to arrest a deserter or straggler from his vessel. If any officer or member of the crew while on shore commits an offense against the laws of the country, the local authorities have jurisdiction over such persons while they are on shore and may cause them to be arrested while there, and to be tried and punished in accordance with the laws of the foreign state. The commanding officer of the vessel or the admiral, if he should be present, should be at once informed of the arrest and the causes which led to it, so that either he or the diplomatic or consular agents of his government may procure the return of the persons accused to their vessel or be enabled to observe the manner of treatment and trial. If an offender, however, escapes to his vessel he cannot be apprehended by the local authorities; but the commanding officer can, if he sees fit, without loss of dignity or prestige, surrender the offender for trial and punishment by the local courts, or the matter can be left to the usual diplomatic channels as mentioned above.

It must not be understood, however, that this doctrine of the immunity of a ship of war goes so far as to deprive a state of all power over the acts of a foreign ship of war. Entrance into the harbors of a state may be denied to any

ship refusing to respect the local laws; her stay may be limited; she may be ordered to depart, and, if necessary, force may be used to expel her, as in the case of a diplomatic agent or even a sovereign. Such expulsion is provided for in Section 5288 of the Revised Statutes of the United States, in which the President is empowered to use for this purpose the land and naval forces of the United States or the militia thereof.15

Finally, as Hall says, "The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purpose; they consequently are not exempted from the local jurisdiction. If a ship of war is abandoned by her crew she is merely property; if members of her crew go outside the ship, or her tenders or boats, they are liable in every respect to the territorial jurisdiction. Even the captain is not considered exempt in respect of act not done in his capacity of agent of the state." 1o

"In 1871 Rear-Admiral Boggs, U. S. N., commanding the European fleet refused to give up certain persons on board a vessel of his command who were charged by the Italian Government with larceny. Secretary Fish, while observing that any person attached to a foreign man-ofwar was liable to arrest on shore for any offense there committed, said: "In the event that a person on board the foreign ship should be charged with a crime, for the commission of which he would be liable to be given up, pursuant to the extradition treaty, the commander of the vessel may give him up if such proof of the charge should be produced as the treaty may require."

15 F. Snow, ed. by Stockton, p. 24.

16 Hall, 6th ed., p. 196.