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

39

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. 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, 40 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.41 The same freedom of navigation is permitted upon the Great Lakes by treaties with Great Britain."

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

38Cushing Att. Gen. 8 op., 175; U. S. vs. Texas, 162 U. S. 1, (1896).

39Handly vs. Anthony, 5 Wheat. 374; Ala. vs. Ga., 25 How. 505; Iowa vs. Ill., 147 U. S. I, (1893). Moore's Digest, 1;615-621.

40 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. IIII; 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.

42

*

of 1818 with Great Britain.43 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, 44 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."

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 Alaska48 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 1889,49 the country's jurisdiction being extended “to all the dominions of the United States in Behring Sea”. In an arbitration of the question in 1892 the United States' claim of jurisdiction was denied; thus "the dominions of the United States in Behring Sea' were held in subsequent cases to extend only to the three mile limit. 50

It is evident that the attitude taken by the United States on the limits of territorial jurisdiction has been by no means uniform. The courts have held that the determination of the matter either as to boundary or jurisdiction over the sea is a political question, and that they are bound to follow the view of the political department of the government.51 Nevertheless the interpretation of political acts bearing on these points often involves questions of legal definition, and the courts undoubtedly may exercise an effective authority in enforcing the country's duty of abstaining from the exercise of jurisdiction outside of its territory, by refusing to take cognizance of cases, where, according to international law, or national acts interpreted according to international law, the national jurisdiction does not extend. In such cases, therefore, the courts may apply rules of international law directly as rules of decision.

(2) The exercise of jurisdiction over vessels of foreign nations seized on the high seas in time of war, by way of reprisals or when ordered by municipal law, has been considered. The general principle appears to be recognized that in time of peace no jurisdiction may be exercised over vessels of foreign states

50On the arbitration see Moore's Digest, 1;913-922. As a result of the arbitration the United States paid Great Britain $473,151.26 as indemnity for the seizures. Judicial discussions subsequent to the arbitration : see The Alexander, 75 Fed. Rep. 519, Pacific Trading Co., vs. U. S., 75 Fed Rep. 519; La Ninfa, 75 Fed. Rep. 513, reversing 49 Fed. Rep. 575; Whitelaw vs. U. S. 75 Fed. Rep. 513. The Behring Sea controversy is discussed at length in Moore's Digest, 1,890-929, and Freeman Snow, Treaties and Topics in American Diplomacy, Boston, 1894, pp. 471-509.

51 Foster vs. Neilson, 2 Pet. 253; Garcia vs. Lee, 12 Pet, 511; U. S. vs. Reynes, 9 How. 127; Williams vs. Suffolk Ins. Co., 13 Pet. 415; In re Cooper, 143 U. S. 472, 502-505, (1892); Jones vs. U. S. 137 U. S. 202, 212, (1890); U. S. vs. Texas, 143 U. S. 621, 629, (1892). See British case Regina vs. Keyn L. R. 2 Ex. D. 63, (1876) Scott 154, in which criminal jurisdiction on vessels within three mile limit was refused in the absence of specific authorization by the political dept. of govt. Soon after this decision, the Territorial Water Jurisdiction, Act. 1878, 41-2 Vict. c. 73 gave such jurisdiction. In Mortensen vs. Peters, 14 Scot. L. T. R. 227 (1906), Bentwich cases, 12, the court held that it was bound to accept the jurisdiction given it by statute over offenses committed beyond the three mile limit by foreign vessels.

on the high seas. The law of the United States does, however, provide for the assumption of jurisdiction over pirate vessels, slave traders, and national vessels upon the high seas.

(a) Jurisdiction over pirates was given by the crimes act of 179052 enacted under the constitutional authority of congress to “define and punish piracies and offences against the law of nations." Besides persons “piratically running away” with vessels or goods worth over fifty dollars on the high seas, the act declared all persons guilty of acts punishable by death if committed in the United States, or of other specified offenses, pirates, and punishable by death. The courts distinguished two classes of offenses in this act: (1) piracy by international law and (2) piracy by national law. It was only for the former offense that the courts could assume jurisdiction of acts committed on foreign vessels. In the latter class of offenses, jurisdiction was only assumed where the offense was committed on a United States vessel or by a United States citizen.54

An act of 181955 amended this act, so as to make “piracy as defined by the law of nations” punishable by death, and piratical vessels subject to forfeiture. The act was practically repeated in 1820,56 and appears in the revised statutes as section 5368. It was repeated in the penal code of 1911, the death penalty having been changed to life imprisonment by an act of 1897.57 The definition of piracy dependent upon the meaning of that term by the law of nations was held sufficiently definite to give criminal jurisdiction.58

Persons holding commissions from recognized belligerents, even though not recognized as independent states, can not be considered pirates" and, although opinions have differed, the weight of authority holds that the vessels of unrecognized insur

52 Act. Apr. 3, 1790, I stat. 113.

53U. S. vs. Klintock, 5 Wheat. 144, (1820); U. S. vs. Pirates, 5 Wheat. 184.

54U. S. vs. Palmer, 3 Wheat. 610, (1818); U. S. vs. Holmes, 5 Wheat. 412, (1820).

55 Act. Mch. 3, 1819, 3 stat. 513.
56 May 15, 1820. 3 stat. 600; Rev. Stat. 5368.
57 Penal Code 1911, sec, 290, Act. Jan. 15, 1897, 29 Stat. 487.
58U. S. vs. Smith, 5 Wheat. 153, (1820).

59The Nuestra Senora de la Caridad, 4 Wheat. 497 ; The Santissima Trinidad, 7 Wheat. 283; The Estrella, 4 Wheat. 298; Ford vs. Surget, 97 U. S. 618; U. S. vs. Baker, 5 Blatch, 11,13.

36

gents may not be treated as pirates.co Foreign vessels have been held forfeitable for piratical aggressions though the voyage was not primarily one of piracy,61 and seizure of innocent vessels on probable suspicion of piracy exempts the captor from liability for damages.2

Property seized by pirates has been restored on payment of salvage in the same manner, 'as in the case of the recapture of prizes during war, though there is no limit to the time during which restoration is possible, as seizure by pirates never divests the original owner of his title.63 A number of treaties have required such restoration. 46

Treaties have provided that American citizens accepting commissions against the other contracting party should be treated as pirates. There has been doubt whether such treaty provisions are valid because of the impliedly exclusive power given by the constitution to congress to "define piracies. 165 There have been no criminal prosecutions under such treaties. The act is not one of piracy by international law and therefore could apply only to United States citizens.

(b) Slave trading by United States citizens was made a crime by an act of 1807,66 and denounced as piracy by a statute of 1820;07 in this case, however, the crime was not one of piracy by international law. In the early half of the nineteenth century, the United States strenuously opposed Great Britain's claims to visit and search foreign vessels suspected of slave trading, and to punish them as pirates. The practice was continued during the Napoleonic wars, but Lord Stowell by a decision

68 60 The Three Friends, 166 U. S. 1, 63, (1897), U. S. vs. the Itata, 56 Fed. Rep. 505; U. S. vs. The Weed, 5 Wall. 62; The Watchful, 6 Wall. 91. Contra see The Ambrose Light, 25 Fed. Rep. 408, (1885), Navy Regulations, 1885, ch. 20, par. 18. See Moore's Digest, 2;1097.

61U. S. vs. The Malek Adhel, 2 How. 210.
62The Marianna Flora, 11 Wheat. I; The Palmyra, 12 Wheat. I.
62Wirt, Att. Gen., I op. 584, (1822).

64 See Treaty with Spain, 1795, art. 9, p. 1643; U. S. vs. The Amistad, 15 Pet. 518.

65The Bello Corrunes, 6 Wheat. 152; Letter by Sec. of State Marcy, referring to a proposed treaty with Venezuela of this character, Moore's Digest, 2; 978.

66 Act. Mch. 2, 1807, 2 stat, 420, sec. 7.
67 Act May 15, 1820, 3 stat. 600, Rev. stat. 5375.

68The Amedie, 1 Act. 240, (1810); The Fortuna, i Dods. 81, (1811); The Diana, i Dods. 95, (1813). The view was held in these cases that foreign vessels seized during war would not be restored if engaged in slave trading.