taken, the commanders of privateers holding commissions of foreign belligerent states have been prosecuted when it could be proved that they were still American citizens as is necessary for prosecution under the first section of the neutrality act."7 If a privateer is to be regarded as subject to the same legal exemption as a man of war it would seem that these cases are in accord with Attorney General Nelson's opinion. Prosecution has never been attempted of commanders of privateers under sections of the neutrality acts which are not directed against citizens alone, as for instance section five,38 which prohibits the augmentation of force of warships or privateers in the territory of the United States by any person. A very similar case arose in the criminal prosecution of Alexander McLeod by the State of New York in 1841.39 He was a soldier acting under authority of Great Britain, but nevertheless New York maintained its jurisdiction to punish him criminally for a homicide committed in that capacity, in the State.

40

At present international law seems to exempt the officers and crew of public vessels from local jurisdiction so long as their acts are in pursuance of official business or take place entirely within the vessel. This exemption, however, does not extend to acts done on land in violation of local laws, and if the commander of a warship is engaged in augmenting the force of his vessel by the purchase of military materials or the recruitment of men in the territory of the United States and outside of his vessel, it seems probable that he would be liable to the criminal provisions of the neutrality act, although in such a case undoubtedly diplomatic protest would be resorted to rather than criminal prosecution.

The criminal prosecution of the officers of warships is not itself a duty of vindication. Internment of such officers in certain cases is the action required of neutral states. It would seem that executive authorities can exercise jurisdiction over foreign naval forces to perform the duties required by treaties. The internment of land forces has been upheld in the courts11 and it is probable that the same action as to naval forces is permitted by the law of the United States.

87U. S. vs. Isaac Williams, Fed. Cas. 17,708, 2 Cranch 82; note: In re Henfield, Fed. Cas. 6360, (1793).

38 Revised Statutes, 5285, Penal Code of 1910, sec. 12.

39 People vs. McLeod, (N. Y.) 25 Wend. 483, 1 Hill 375, (1841).

40 See Moore's Digest, 2; sec. 256.

41Ex Parte Toscano, 208 Fed. Rep. 938, (1913).

(2) Whether United States courts can exercise jurisdiction over foreign public vessels which have violated the neutrality of the United States is a question of difficulty. It has been noted that courts can exercise jurisdiction over the prizes captured by belligerent privateers or cruisers in certain cases. The exercise of jurisdiction over the privateer or warship itself is an entirely different question. In the neutrality statutes forfeiture of privateers fitted out in the United States for unneutral purposes is provided for, but this may be intended to refer to cases where the vessel was apprehended before being commissioned by the foreign power, and so does not necessarily imply a grant of jurisdiction over foreign public vessels. It has however been interpreted so to apply. In the case of the Cassius, which was a French public vessel originally fitted out in the United States in violation of the neutrality laws, the vessel was held for a long time pending litigation and ultimately released on a technicality. France had protested at the exercise of jurisdiction over this vessel and finally abandoned it with the intention of protesting the matter diplomatically. Secretary of War Pickering in referring to this case upheld the court's jurisdiction, for he thought if forfeiture could not be had in such cases the neutrality acts could be completely evaded by transferring illegally fitted out vessels to the foreign government at their first port. The exemption of foreign warships from local jurisdiction was denied by Attorney General Bradford in an opinion of 179445 in which he supported the execution of writs of habeas corpus on a British public vessel in an American port, for the purpose of releasing American citizens held on board. This action gave rise to a protest by the British minister.

46

The better opinion however seems to be that expressed by Chief Justice Marshall in the Schooner Exchange vs. Mc-Faddon, in which case the court refused juridiction of a French public vessel which had entered port in stress of weather and which was claimed by a United States citizen as having been

42 Revised Statutes, sec. 5283, Penal Code of 1910, sec. II.

43 Ketland vs. The Cassius, 2 Dall. 365. See also U. S. vs. Peters, 3 Dall. 121, which was an earlier case involving this vessel, in which the court's jurisdiction was denied.

44Letter of Sec. of State Pinckney, Oct. 1, 1795, Am. St. Pap., For. Rel., I:634.

45 Bradford, Att. Gen., 1 op. 47, (1794).

40 The Schooner Exchange vs. McFaddon, 7 Cranch, 116, (1812).

illegally made prize by the French. The court held that while the principle of territorial sovereignty was absolute, comity and custom demanded that public vessels be excepted from the general rule, and the court would infer that the government intended to observe the customary rule of comity unless it had expressly declared the contrary. The exemption of foreign public vessels from jurisdiction was emphatically maintained by Attorney General Cushing in 1855 the theory of extraterritoriality being asserted. As has been noted Attorney General Nelson, while maintaining that the officers of public vessels were subject to the territorial jurisdiction, admitted that the vessels themselves were exempt.48 This appears to be the rule and therefore, although United States courts can assume jurisdiction over illegal prizes, they cannot over foreign public vessels even when they have violated a duty of international law.49

Although courts cannot exercise jurisdiction over foreign public vessels violating neutrality, it is clear that executive officers must do so, if the duties of vindication are to be carried out. If a court exercised jurisdiction it would have authority to declare the vessel forfeited and thus change its ownership. Executive officers can exercise no such authority as this, but they can expel or detain a public vessel, render it incapable of putting to sea and intern its crew when occasion demands. The power to expel50 public vessels is specifically given in the neutrality laws to the president, and in the execution of this power he may use the land and naval force and the militia of the country, if necessary. The power to detain vessels violating neutrality statutes is given to the president and also to custom officers52 when circumstances render an unneutral use probable. This does not apply to belligerent war vessels in general. It has been held that the president's power can only be used in aid of judicial process, and only military, not civil, officers can be employed.53 A customs officer detaining a vessel

47 The Sitka, 7 op. 123, (1855) Att. Gen. Cushing. See also 8 op. 73. 48 Nelson, Att. Gen., 4 op. 336, (1844).

49 For discussion of the exemption of public vessels from territorial jurisdiction see Hall, International Law, p. 195.

50 Rev. Stat. 5288, Penal Code of 1910, sec. 15.

51 Rev. Stat. 5287, Penal Code of 1910, sec. 14.

52 Rev. Stat. 5290, Penal Code of 1910, sec. 17.

53 Gelston vs. Hoyt, 3 Wheat. 246; See also 4 op. 336, (1844), somewhat modified in 21 op. 273.

under this provision does so at his own risk.54 On account of these interpretations the statutory provisions seem insufficient to carry out the country's duties of vindication. However, as duties specified in treaties and conventions can probably be exercised by the president in the absence of express statutory authority,55 the omission is not serious.

VIOLATIONS OF LAND TERRITORY.

56

59

The principal duty of vindication required under this head is the internment of belligerent troops entering neutral territory. Although not acted upon by New York in the case of People vs. McLeod, the general principle that military forces are exempt from territorial jurisdiction is recognized in the United States. The doctrine was stated in reference to troops passing through territory under a license, in dicta by Chief Justice Marshall in The Exchange vs. McFaddon," and in reference to the rights of troops engaged in hostilities in several cases arising out of the civil war.58 This does not, however, prevent executive officers performing duties imposed upon the country by treaty. In the case of Ex Parte Toscano," which came before a United States circuit court in 1913, the facts were as follows: During the civil war in Mexico a band of federalist troops defeated at Novco crossed the frontiers of the United States and voluntarily surrendered to armed forces of the United States. Under order of the president they were disarmed, kept for a time at El Paso and then sent to Ft. Rosecrans, California. Toscano, one of the interned soldiers, sought release on habeas corpus, on the ground that he was unconstitutionally deprived of liberty without "due process of law". This the court denied, holding that the exercise of the authority by the president was fully justified by the Hague convention of 1907,60 which had been ratified by both the United States and Mexico. "The treaty," it said, "is full and complete and no legislation is necessary to its enforcement." If congress has not provided special officers for carrying it out

54 Hendricks vs. Gonzalez, 67 Fed. Rep. 351.

55 Ex Parte Toscano, 208 Fed. Rep. 938, (1913).

56 People vs. McLeod, (N. Y.) 25 Wend. 483; 1 Hill 375, (1841).

57 The Schooner Exchange vs. McFaddon, 7 Cranch 116, (1812).

58 Neal Dow vs. Johnson, 100 U. S. 158, 170, (1879); Coleman vs. Tennessee, 97 U. S. 509, (1878).

59 Ex Parte Toscano, 208 Fed. Rep. 938, (1913).

60 Hague Conventions, 1907, v, art. 11, Malloy, p. 2298.

the duty devolves upon the president as chief executive. The Hague treaty itself and the execution of its terms were held to be sufficient to give the applicant his "due process of law", and the writ was denied. From this case it seems that United States law adequately provides for performing this duty of vindication.

The United States has provided for carrying out its duties. of vindication (1) by conferring jurisdiction on the federal courts of illegal prizes, with power to restore and liberate such prizes according to international law, and (2) by conferring authority on executive officers to expel, detain and intern war vessels and their officers and crews and to intern belligerent troops crossing the frontier. The degree to which the international duties of vindication are performed depends upon the rules of law acted upon by courts and executive officers in exercising their jurisdiction in these matters. The rules followed by courts are found in court decisions, and are based on the principle that courts of the United States apply international law as part of the law of the United States, while executive officers are bound by the principle that treaties are the law of the land and so perform the duties of vindication as therein specified. With these principles it seems that adequate provision is made in the law of the United States for carrying out the duties of vindication imposed by international law.