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. 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 pirates59 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.

56May 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.

gents may not be treated as pirates.60 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.62

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.' '65 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; 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

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.

62 The Marianna Flora, 11 Wheat. 1; The Palmyra, 12 Wheat. I. 63 Wirt, Att. Gen., I op. 584, (1822).

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

65 The 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.

68 The Amedie, 1 Act. 240, (1810); The Fortuna, 1 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.

in 181769 refused to recognize these claims as valid in time of peace, and his view was followed by Chief Justice Marshall in 1825;70 consequently the "pirates" from slave trading were only subject to United States jurisdiction when in domestic vessels.

The treaty of Ghent with Great Britain in 181471 expressed the hope that both countries would endeavor to suppress the slave trade, and in the Webster-Ashburton treaty of 184272 the United States agreed to maintain a squadron on the West African cost to act in cooperation with a like English squadron, each of them, however, to seize only vessels flying its own flag.

''73

Great Britain definitely renounced her claim to visit and search foreign suspected vessels in 1858, and at the same time the United States senate by a resolution denounced the "visit, molestation, and detention" of United States vessels by force by foreign powers "as a derogation of the sovereignty of the United States. A treaty with Great Britain of 186274 provided for the mutual patrol of a conventional zone extending two hundred miles from the African coast, and the seizure of slave traders, to be tried in three mixed courts at Sierre Leone, Cape of Good Hope, and New York. In 187075 the mixed courts were abolished by treaty, the same provisions applying to national courts of the two countries. By the general act for the repression of African Slave Trade of 1890, which is a treaty ratified by the United States and sixteen other powers, the visit, search and seizure of vessels of signatory powers under five hundred tons burden, by war vessels of any of the signatory powers, are permitted in a prescribed zone about Africa. Suspected vessels are to be sequestrated and their officers and crew turned over to the country under whose flag they sailed. Slave trading by this convention has been put on a footing resembling that of piracy, though not exactly the same. Visit and search may only be exercised against foreign vessels in the limited zone, and trial is always by the country of the suspected parties."

69Le Louis, 2 Dods. 210, (1817).

70The Antelope, 10 Wheat. 66, (1825).

71Treaty with Great Britain, 1814, art. 10, Malloy, p. 618. 72Treaty with Great Britain, 1842, art. 8, Malloy, p. 655.

73 Moore's Digest, 2;946.

74 Treaty with Great Britain, 1862, Malloy, p. 674.

75 Treaty with Great Britain, 1870, Malloy, p. 693.

76General Act for the Repression of African Slave Trade, 1890, Mal

loy, p. 1964.

77On the Slave Trade see Moore's Digest, 2;914-951.

78

(c) Jurisdiction over civil cases involving merchant vessels on the high seas is inherent in the admiralty jurisdiction given. to federal courts by the constitution and by the judiciary act of 1789. Cognizance of crimes committed on board national vessels is not, however, inherent in the admiralty jurisdiction," but, by statute, courts of admiralty are given jurisdiction over offenses on United States vessels at sea, even when committed by foreigners. The acts specified as piracy by national law come under this head. The criminal jurisdiction over vessels is not co-extensive with the civil admiralty jurisdiction. The latter has been held to extend over the high seas to tide water mark and in rivers so far as the ebb and flow of the tide, in the United States having been extended over the Great Lakes and all navigable streams.80 The criminal jurisdiction, however, extends only over United States vessels on the high seas beyond territorial limits. Crimes on board vessels within territorial waters of the United Statess1 or foreign countries82 are not within the statutory grant of jurisdiction to courts of admiralty jurisdiction, but are within the cognizance of the state or foreign. country where committed. Statutes have given consular courts jurisdiction over crimes committed by seamen upon United States vessels.83 The jurisdiction extends where the vessel is in the port of the country where the court is located.84

The national jurisdiction over public vessels is complete, and exists even when the vessel is within foreign territorial waters. This jurisdiction is exercised through the courts martial

78U. S. vs. Bevans, 3 Wheat. 366; U. S. Wiltberger, 5 Wheat. 76, (1820); U. S. vs. Holmes, 5 Wheat. 412, (1820).

79 Act. Apr. 30, 1790, I stat. 113; Rev. stat. 5346, 5576, Penal Code, 1911, sec. 272. The jurisdiction extends also to offenses committed on Guano Islands. Trial is held in the district court of the district where the offender is found or into which he is first brought, (Rev. stat. 730).

80 The Genessee Chief, 12 How. 443; The Hine vs. Trevor, 4 Wheat. 555, (1866); The Moses Taylor, 4 Wall. 44, (1866); Packer vs. Bird, 137 U. S. 661, (1891).

81U. S. vs. Bevans, 3 Wheat. 336.

82U. S. vs. Wiltberger, 5 Wheat. 74, (1820), U. S. vs. McGill, 4 Dall. 426, (1806). U. S. vs. Rodgers, 150 U. S. 249, (1893), seems to be contra. In Reg. vs. Anderson, II Cox C. C. 198, (1868), a British case, the court took jurisdiction of a crime by a United States citizen on a British vessel forty-five miles up the Garonne of France. Moore's Digest, 2;937. See infra p. 42.

83 Rev. Stat. 4084, 4088.

84 In re Ross, 140 U. S. 453, (1891).