expatriation is admitted. Whether the citizens who have emigrated and reside abroad may expatriate themselves, acquire citizenship in another country and claim the privileges of the new citizenship on returning is a different question. The United States has maintained that the recognition of the right of expatriation is a duty of international law, but all nations have not given assent to this doctrine. The opinion which considers a state bound to acquiesce in the freedom of commerce has certainly received no countenance from American practice. The United States has completely prohibited exportation, by embargo acts. It has prohibited trade with specified countries by nonintercourse acts and has habitually placed serious limitations upon importation by protective tariffs. No duty of acquiescence in these fields is required by international law, and the subject need no longer detain us.

Limiting consideration to the first class, we may discuss the national measures enforcing the duty to acquiesce in limitations upon the complete exercise of authority within the territory, under three heads: (1) privileges of foreign agencies of government and persons, (2) liabilities attached to newly acquired territory, (3) exemptions of certain portions of territory from complete control, or servitudes.

As in the case of the duty of abstention this duty is one directed immediately to the sovereign power of the state. If the sovereign refuses to acquiesce in the immunity of ambassadors, and orders his courts to assume jurisdiction over them, the courts must obey. If by an act of state he refuses to recognize the right of inhabitants of acquired territory to their vested rights under the former sovereign, the courts must obey. Or if he refuses to permit vessels in distress to enter his ports, and commerce to pass upon his boundary rivers, his international canals and his territorial waters, the obligation can not be enforced by municipal law. In all of these cases, however, in the absence of express

"The "inherent right of expatriation" was enunciated by congress in 1864, Rev. Stat., 1999-2000.

8 See West Rand Central Gold Mining Co., vs. Rex., L. R. 2 K. B. 391 (1905), which held that "an act of state" barred recovery from the British government of a claim due from the Transvaal government before acquisition. Discussion of this case by J. Westlake, "Is Int. Law Part of the Law of England?", Law Quar. Rev., 22;14.

The fortifications of the Panama Canal amounts to an announcement that the United States will not acquiesce in its freedom to commerce under all circumstances.

statute the courts may enforce the duty by adhering to the rule that international law is to be applied in appropriate cases, and that statutes are to be interpreted so far as possible in accord with that law. And where the rules of international law are expressly declared by treaty, statute or executive order, the power of municipal law to enforce is clear.

PRIVILEGES OF FOREIGN AGENCIES OF GOVERNMENT AND PERSONS

11

(1) Foreign public vessels are granted the right of asylum coupled with immunity from local jurisdiction in several treaties, 10 and in a large number of treaties the United States has agreed to accord the most favored nation treatment to the diplomatic representatives of the contracting power, and special privileges have frequently been thus accorded to foreign consuls. These privileges do not in general extend beyond the immunity of the consular archives from seizure, the inviolability of the consulate, and the privilege of adjusting disputes between sailors on national vessels and performing functions connected with commerce. Most treaties specify that the consul shall be subject to local jurisdiction in the same manner as citizens and to most favored nation treatment.12 By a few treaties consuls are exempt from giving testimony,13 and in non-Christian countries, where extraterritorial privileges are granted consuls usually enjoy diplomatic immunities by treaty; such privileges, however, are not reciprocal.11

The consular regulations and diplomatic instructions outline

10 See Treaties, France, 1778-1798, art. 17, Malloy p. 474; 1800-1809, art. 24, p. 504; Great Britain, 1794-1807, art 25, p. 604; Prussia, 17851796, art. 19, p. 1483; 1799-1810, revived 1828, art. 19, p. 1493; Sweden, 1783-1799, revived 1816, 1827, art. 19, p. 1732; Netherlands, 1782-1795, art. 5, p. 1245.

11 Such treaties have been concluded with twenty-one countries, mostly in South and Central America. The Spanish treaty of 1902, also, contained this stipulation (art. 12, Malloy, p. 1704).

12In 104 treaties with 51 countries provision for consular officers is made. 20 special consular conventions with 15 countries have been concluded. Consular conventions with practically all countries are now in force. Russia, however, since the termination of the treaty of 1832, by joint resolution of congress in 1911, is an exception to this rule.

13 For example see treaty with France, 1853, art. 2, Malloy, p. 529. 14 See Moore's Digest, 5, 37-40. Supra, pp. 39-40.

the privileges of such officers. These executive orders are not of importance in enforcing the country's duty of acquiescing in the immunities of foreign resident officers, but they illustrate the view of the law taken by the United States.

In several treaties private citizens of the contracting parties are granted immunity from military service.16

(2) Courts have enforced the duty to acquiesce in the immunities granted by treaty and statute as well as others recognized by international law. They have held that jurisdiction may not be assumed of suits against foreign sovereigns,17 and former officers of foreign governments, 18 for political acts, even when they are within the territory. The same exemption has been held to apply to public vessels19 and other personal property of a foreign state or sovereign.20 Public armed troops and soldiers have also generally been held exempt when acting under orders of their sovereign,21 but in the celebrated case of People vs. McLeod, 22 in which a court of the state of New York refused to recognize such immunities, a reverse attitude was taken. In this case the authorities at Washington favored the release of McLeod in accordance with international duty, but were unable to release him from state authority. The case illustrates the obstacle which the divi

15 Consular Regulations, 1896, sec. 71-75, 82. Diplomatic instructions, 1897, sec. 18, 46-49.

16 Such treaties have been concluded with sixteen countries. Those with Argentina, 1853, art. 10, Malloy, p. 23; Congo, 1891, art. 3, p. 329; Costa Rico, 1851, art. 9, p. 344; Honduras, 1864, art. 9, p. 955; Italy, 1871, art. 3, p. 970; Japan, 1894, art. 1, p. 1029; Paraguay, 1859, art. 11, p. 1367; Servia, 1881, art. 4, p. 1615; Spain, 1902, art. 5, p. 1703, are now in force. 17 See Dicta by Chief Justice Marshall, in Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812). British case, Mighell vs. Sultan of Johore, L. R., 1894, Q. B. D., 1; 149.

18 Underhill vs. Hernandez, 168 U. S. 250.

19U. S. Peters, 3 Dall. 121; Schooner Exchange vs. McFaddon, 7 Cranch 116, 137 (1812); Tucker vs. Alexandroff, 183 U. S. 424 (1902). See British case, The Parlement Belge, L. R., 5 P. D. 197, 217 (1900), Bentwich, p. 123; Scott, 220.

20 Hassard vs. U. S. of Mexico, 61 N. Y. S. 939 (1899). British case, Vavasseur vs. Krupp, L. R. 9, Ch. D. 351 (1878); Moore's Digest, 2, 558-593.

21 Tucker vs. Alexandroff, 183 U. S. 424 (1902); Dicta Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812).

22 People vs. McLeod, 25 Wend, 253; 26 Wend, 663; See Moore's Digest, 2; 24-25. McLeod was tried and finally acquitted on an alibi.

sion of power between state and national government may offer to the performance of international duties. Soon after this case, by an act of 1842,23 congress provided for the release of such persons from state courts by habeas corpus issued by federal courts. The exceptions to the general rule of exemption in cases where it becomes necessary for the state to vindicate a violation of its neutrality are considered under that subject.24

27

(3) By statute courts are forbidden to take jurisdiction of cases against diplomatic ministers and members of their households upon either civil or criminal charges. 25 This has been held to apply to such officers accredited to third countries in transit through the United States26 as well as those accredited to the United States, but the person claiming immunity must be an actual diplomatic officer. A consul general performing diplomatic functions was held not to be within the immunity. Few cases have come before United States courts involving, directly, jurisdiction over diplomatic officers. Generally a release has been effected by executive authority before the process has gone so far. In a number of cases dealing with the punishment of persons violating diplomatic immunities the question has been discussed.28 The courts have also held that a diplomatic officer may not be compelled to give testimony.29

For the better enforcement of these duties the constitution has conferred jurisdiction over cases involving ambassadors and public ministers upon the federal courts, and has also given the supreme court original jurisdiction in such cases.30 Statutes31

23 Act Aug. 29, 1842, Rev. Stat. sec. 753; Moore's Digest, 2; 30.

24 Infra, p. 129 et seq.

25 Act. Apr. 30, 1790, 1 Stat. 117, Rev. Stat., sec. 4063-4064.

26 Wilson vs. Blanco, 56 N. Y. Superior Court 582; 4 N. Y. S. 714; Scott, 206.

27In re Baiz, 135 U. S. 403 See British case, Heathfield vs. Chilton, 4 Burr. 2015, Scott, 189. On diplomatic immunities generally see Ex Parte Cabrera, 1 Wash. C. C. 232; Cushing Att. Gen., 7 op. 367 (1855); Triquet vs. Bath, 3 Burr. 1478, and other English cases, cited Scott, 191, note.

28 U. S. vs. Liddle, 2 Wash. C. C. 205 (1808); Res Publica vs. De Longchamps, 1 Dall. III (Pa. 1784); U. S. vs. Ortega, 4 Wash. C. C. 531 (1825); U. S. vs. Benner, Baldwin 234.

29 Guiteau's Trial, 1; 136; Moore's Digest, 4; 645.

3oConstitution, Art. iii.

31 Judiciary Act, Sept. 24, 1789, sec. 9, II, 13, 1 Stat. 76, Rev. Stat. Sec. 687, 711, Judicial Code 1911, 36 Stat. 1087, sec. 256, cl. 8.

have made jurisdiction over such officers or their households exclusive in the federal courts, thus prohibiting the exercise of any such authority by state courts, and preventing an occurrence in reference to public ministers similar to that of the McLeod case, in reference to foreign armed forces. Statutes have also provided that the supreme court "shall have, exclusively, all such jurisdiction of suits or proceedings against ambassadors or other public ministers or their domestics or servants as a court of law can have consistently with the law of the nations.''32

The courts have held that consuls are not entitled to the immunity of ambassadors, but are subject to criminal and civil jurisdiction. Consuls are generally held exempt from military and jury service, but United States citizens holding foreign consular positions may not claim this exemption,34 and trading consuls are subject to the liabilities of native merchants in all that concerns their business.35 Treaty privileges of consuls are protected by the constitutional principle that treaties are law to be applied by the courts. In a case in which a consul claimed immunity from subpoena under treaty, the court held that even the constitutional provision giving a person under criminal indictment the right to have compulsory process for obtaining witnesses in his favor" would not permit of serving process on such a consul.36

The constitution confers jurisdiction, in cases affecting consuls, upon federal courts and original jurisdiction in such cases upon the supreme court. By the Judiciary Act of 1789,37 juris

32 Rev. Stat. 687; Judicial Code, 1911, 36 Stat. 1087. sec. 233.

33 Commonwealth vs. Kosloff, 5 Serg. and Rawle, 545, (Pa. 1816); Coppell vs. Hall, 7 Wall. 542, (1868); Gittings vs. Crawford, Taney's Decisions, 1; In Re Baiz, 135 U. S. 403; Berrien, Att. Gen. 2 op. 378, (1830); Butler Att. Gen., 2 op. 725, (1835); Cushing Att. Gen. 6 op. 18, 367, (1854-1855). In U. S. vs. Ravara, 2 Dall. 297, (1793), a consul was subjected to criminal jurisdiction. British cases, see Barbuit's case, Cas. Temp. Talbot, 231 (1737); Clark vs. Cretico, 1 Taunt. 106, (1808); Viveash vs. Beckers 3 M. & S. 284, (1814).

34Cushing Att. Gen., 8 op. 169, (1856).

35 Coppell vs. Hall, 7 Wall 542, (1868).

36 In Re Dillon, Fed. Cas. 710; Moore's Digest 5:78. The court held that the constitutional provisions only insure equal privileges in obtaining witnesses to the accused and the government, not an absolute right in either case. The French government maintained that rights of its consul under international law as well as under treaty had been violated by the serving of process which gave rise to this case.

37 Judiciary Act. 1789, Rev. Stat. sec. 711, Cl. 8.