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Department of State further aid in the performance of this duty. In 1887 instructions to a Chargé d'affaire in Peru said, "It is always expected that the agents of the department abroad will exercise extreme caution in summoning war vessels to their aid at critical junctures, especially if there be no practical purpose to be subserved by their presence. "'24 The courts have affirmed this

view in dicta. Where a seizure under the non-intercourse act was made in foreign territorial waters the court said, "it is certainly an offense against the power which must be adjudicated between the two governments, "25 and where a naval officer entered foreign territory to recover piratically seized property of American citizens it held that he acted beyond his right, but in both of these cases the foreign government's claim was held to be subject to diplomatic settlement only. Municipal law could offer no relief. Where special permission to pursue marauders on foreign territory or to preserve order is given by treaty, as is the case in several Mexican agreements and treaties with Cuba and Panama, no duty of abstention is involved.27

In the present state of the law the enforcement of the duty to abstain from intervention and the use of force on foreign territory belongs primarily to the executive through its control of military and naval forces and diplomatic officers, as well as of the general conduct of foreign relations. Judicial authorities may add their sanction by the enforcement of the usual principles of administrative and military law. Violations of the international obligation, specifically authorized by the political departments of government, are, however, beyond the power of municipal law to control.

(2) Reprisals may be divided into four classes: public and private general reprisals, public and private special reprisals. General reprisal is the right to seize any property of a foreign

24 Mr. Bayard, Secretary of State, to Mr. Neal, Chargé, Nov. 16, 1887; see Moore's Digest 7;109. See also Consular Regulations, 1896, Sec. 113. 25 Ship Richmond vs. U. S., 9 Cranch 102, 104, (1815) See also the Itata 1892, Moore, Int. Arb. pp. 3067-3071.

26 Davisson vs. Sealskins, 2 Paine 324. See also Nelson, Att. Gen., 4 op, 285 (1843); Black, Att. Gen. 9 op. 286, (1859); Moore's Digest, 1;362-365.

27 Protocols with Mexico, 1882, 1883, 1884, 1885, 1890, 1892, 1896, Malloy pp. 1144-1177. Most of them were to be in force one year, but that of 1896 specified that it should last until Kid's band of Indians be exterminated or pacified. See also treaty with Cuba, 1903, p. 362; Panama, 1903, art. 23, p. 1356; Nicaragua, 1867, art. 15-17, p. 1285.

state or its citizens on the sea, and is equivalent to a state of war, although in the trouble with France in 1798-1799 general reprisals were authorized by congress28 without an express declaration of war. The courts, however, held that war actually existed.29 By the abolition of privateering, private general reprisals are no longer permitted. Public general reprisals are still resorted to but are considered in the chapters devoted to obligations in time of war.

By private special reprisals, persons wronged by a foreign state were formerly permitted by commission of their sovereign to indemnify themselves by seizing property belonging to any subject of that state on the high seas in time of peace. This practice would amount to an aggravated form of privateering and would now be regarded as little short of piracy. The legitimacy of the practice seems to be admitted by the constitutional provision giving congress power to grant letters of marque and reprisal, though it was denied by Attorney General Randolph in an opinion in 1793. At present the practice is undoubtedly obsolete.30 The only question therefore which concerns us here is that of public special reprisals. Under this right the seizure of vessels on the high seas or in the jurisdiction of their own state through such institutions as pacific blockade is generally considered legitimate by writers on international law. As the United States has not resorted to reprisals in time of peace, except in the case of France in 1799 which the courts regarded as war, the courts have had no opportunity to pass upon the legitimacy of seizures by way of reprisal, but they would undoubtedly be bound by any act of the political department of the government in this respect. The power to make war would probably be held to include a power to resort to lesser acts of violence.

(3) The duty to abstain from the use of force outside of the territory of the United States against foreign vessels guilty of infractions of local law, has not been universally maintained by the law of the United States. An act of 179731 still in force authorizes revenue officers to board foreign vessels four leagues from the coast; and in Church vs. Hubbart32 Chief Justice Mar28 May 28, 1798, 1 stat. 361; July 9, 1798, I stat. 578; Mch. 3, 1799, I stat. 743.

29 Bas. vs. Tingey, 4 Dall. 37, (1800); Talbot vs. Seaman, 1 Cranch 1, 282, (1801); Moore's Digest, 7;155-153.

30Randolph, Att. Gen. I op. 30, see Moore's Digest, 7;119.

31 Act. Mch. 2, 1797, Sec. 27, rev. stat. 2760; Moore's Digest, 1;725. 32Church vs. Hubbart, 2 Cranch 187; Scott, 343.

shall upheld the right to make seizures on the high sea for breaches of municipal regulations in a case involving such a seizure by Brazil; but, a few years later, in Rose vs. Himely,33 changed his mind, and denied the validity of such seizures. The embargo and non-intercourse acts of the early nineteenth century did not permit the seizure of foreign vessels outside of territorial jurisdiction. The rule laid down by Lord Stowell in Le Louis, that visit, search and seizure of foreign vessels beyond territorial jurisdiction is not permitted in time of peace, was followed by Chief Justice Marshall in The Antelope,35 and appears to be the usual law of the United States. Exceptions to this statement are found in the provisions of treaties authorizing the seizure in restricted zones of slave traders flying foreign flags, and the universally acknowledged right of seizing pirate vessels. These subjects will be discussed in considering the exercise of jurisdiction over the high seas. Cases have affirmed that unequivocal acts of the sovereign authorizing seizures beyond the three mile limit would be obligatory, though such acts should if possible be interpreted to accord with international law.36 Nevertheless, in the Alaskan seal fishery dispute of 1886 British sealing vessels were seized sixty miles from shore and their seizure justified by courts under a statute which by no means unequivocally authorized such acts.37 The attitude taken by the courts, however, was that the territorial jurisdiction of the United States extended one hundred Italian miles from the shore; the question will therefore be adverted to in considering the extent of jurisdiction.

While the duty to abstain from the use of force against foreign vessels on the high seas in time of peace is primarily to be controlled by executive authority, yet by the rule requiring legal

33 Rose vs. Himely, 4 Cranch 241, (1808), see also Hudson vs. Guiestier, 6 Cranch 281, (1810); The Appollon, 9 Wheat. 362, (1824). In the Itata, 1892, Moore's Int. Arb., p. 3067-3071, the U. S. was held liable in damages for a seizure in Chilean waters, see Scott, cases note p. 344. Similar view was held by the U. S. supreme court in the Ship Richmond vs. U. S. 9 Cranch 102, 104 (1815). Moore's Digest, 2;364. 34 Le Louis, 2 Dods. 210, (1817). 35 TheAntelope, 10 Wheat. 66, (1825).

36 Murray vs. The Charming Betsy, 2 Cranch 64, (1804), which held that the non-intercourse act should not be interpreted as authorizing the seizure of foreign vessels on the high seas or prohibiting the sale of national vessels to foreign countries.

37 See Moore's Digest, 1;895.

adjudication of all seizures courts may add their sanction to the enforcement of this duty.

EXERCISE OF EXTRA-TERRITORIAL JURISDICTION

The final duty of abstention requires a state to refrain from exercising jurisdiction beyond its territory, with a few exceptions. For convenience we may consider the matter under the four heads: (1) extent of territory, (2) jurisdiction over the high seas, (3) jurisdiction over acts committed in foreign countries and (4) jurisdiction over suits against foreign states.

(1) Where the territory of the United States is adjacent to that of foreign states, the boundary has in most cases been defined by treaties which are binding upon the courts in assuming jurisdiction of cases.38 In the absence of treaty stipulations river boundaries have been held to exist in the middle of the main current.39 In the case of international rivers, however, a number of treaties have provided that the jurisdiction is subject to the right of free navigation by vessels of all nations,1o and the courts have maintained this position, holding that a foreign vessel could not be seized for violation of local laws while passing through American waters of an international river, en route to a foreign port. The same freedom of navigation is permitted upon the Great Lakes by treaties with Great Britain."2

41

The extent of territorial jurisdiction on the sea for exclusive fishing privileges was fixed at the three mile limit in the treaty

38 Cushing Att. Gen. 8 op., 175; U. S. vs. Texas, 162 U. S. 1, (1896). 39 Handly vs. Anthony, 5 Wheat. 374; Ala. vs. Ga., 25 How. 505; Iowa vs. Ill., 147 U. S. 1, (1893). Moore's Digest, 1;615-621.

4o See Treaties with Great Britain, 1783, Art. 8, p. 589. Art. 3, Malloy, p. 643; 1846, Art. 2, p. 657; 1854-1866, Art. 4, p. 671, Art. 26, p. 711 decreeing free navigation in the Mississippi, St. Lawrence, St. John, Yukon, Stikine, and Porcupine. With Mexico, 1848, Art. 6, 7, p. 1111; 1853, Art. 4, p. 1123, decreeing free navigation in the Colorado, Gila, and Bravo. In a treaty with Bolivia in 1850, Art. 26, p. 122, it is stated that "in accordance with fixed principles of international law, Bolivia regards the rivers Amazon and La Plata * * opened by nature for the commerce of all nations" and in that with Argentine Republic of 1853, Art. 6, p. 19, the Parana and Uruguay are declared free to commerce even in time of war, with the exception of contraband.

41 The Appollon, 9 Wheat. 362, (1824).

42Treaty with Great Britain, 1871, art. 28, 30, Malloy, p. 711; 1842, art. 2, p. 652; 1854-1866, art. 4, p. 671.

44

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of 1818 with Great Britain. In treaties with Mexico, however, the boundary between the two countries was stated to begin three marine leagues or nine miles from land in the Gulf of Mexico, and an act of 179745 still in force authorizes revenue officers to board foreign vessels four leagues from shore. The whole of bays with headlands two leagues apart or even more have been held by statute, official opinions and judicial decisions to be entirely within territorial jurisdiction.16

By an act of 186847 the killing of fur seal "within the limits of Alaskan Territory or in the waters thereof" was prohibited. Vessels engaged in such business were declared forfeitable and their officers and crew liable to criminal punishment. In 1886 the United States District court of Alaska18 held a number of seizures of British vessels by revenue cutters, sixty miles from shore, valid under this statute. It reached this decision by applying the meaning of Alaskan territorial waters given in a Russian Ukase of 1821, which it held was the meaning adopted by the political department of the United States government. This Ukase had declared the territorial jurisdiction of Russia to extend one hundred Italian miles from the shore, and the United States claimed to have purchased this jurisdiction with the territory in 1867. The vessels were condemned and the officers held liable to criminal punishment. Upon Great Britain's protest the vessels and men were released and orders sent to Alaska to discontinue pending proceedings. Nevertheless in 1887 and 1889 other vessels were condemned by the same court. The act of 1868 was amended in 1889,9 the country's jurisdiction being extended "to all the dominions of the United States in Behring Sea". In an arbitration of the question in

43 Treaty with Great Britain, 1818, art 1, Malloy, p. 631.

44 Treaty with Mexico, 1848, art. 5, Malloy, p. 1109; 1853, art. I,

P. 1122.

45 Act. Mch. 2, 1797, sec. 27; rev. stat. 2760, See Moore's Digest, 1;725. 46 For Delaware Bay, see Randolph, Att. Gen., I op. 321, Moore's Digest, 1;735; Chesapeake Bay, Stetson vs. U. S., Moore, Int. Arb., 4; 4337-4341; Moore's Digest, 1: 741; Buzzard's Bay, Public Acts Mass., ch. 1, sec. 12, (1890); Commonwealth vs. Manchester, 152 Mass. 230, (1890), affirmed Manchester vs. Mass., 139 U. S. 240.

47 Act June 27, 1868, Rev. Stat. 1856.

48 See U. S. vs. La Ninfa, 49 Fed. Rep. 575, (1891); U. S. vs. the James G. Swan, 20 Fed. Rep. 108; U. S. vs. The Alexander, 60 Fed. Rep. 914.

Act. Mch. 2, 1899, 25 Stat. 1009.

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