diction of suits against consuls was given exclusively to federal courts. By an act of 1875 this provision was repealed, giving state courts a concurrent jurisdiction, but in the Judicial code of 1911 the jurisdiction of federal courts was again made exclusive. The supreme court exercises original, but not exclusive, jurisdiction in such cases.38

(4) A more extensive limitation upon territorial sovereignty than the mere immunity of consuls in these respects, is the jurisdictional privileges accorded by some treaties. The United States has never concluded treaties by which foreign consuls or diplomatic officers exercise extraterritorial jurisdiction in its territory to the extent that such jurisdiction is commonly exercised in nonChristian countries, but certain privileges have been accorded. These privileges, which have always been reciprocal, generally permit foreign consuls to "sit as judges or arbitrators in such differences as may arise between the captain and crew of the vessels belonging to the nations whose interests are instrusted to their charge, without the interference of the local authorities, and to require the assistance of local authorities "to cause their decision to be carried into effect or supported.''39 These treaties undoubtedly impose a duty upon the United States to acquiesce in the consular jurisdiction provided for. It has been held that the authority is ministerial and not judicial, and in an early opinion the court expressed the view that the treaties were not selfexecuting, and local officers could not lend assistance without statutory authority." This view is not generally maintained, but to avoid difficulties a statute of 186442 required United States courts

40

38 Act. 1875, 18 Stat. 318. See Wilcox vs. Luco, 18 Cal. 639, (1898). The court below held that the constitutional provision alone gave exclusive jurisdiction to federal courts, but this was reversed in the state supreme court. See Moore's Digest, 5;72-77, Scott, 205-206, note. Judicial code 1911, 36 Stat. 1087, sec. 256, C1 8: sec. 233.

39 See Treaties with Prussia, 1828, art. 10, Malloy, p. 1499; France, 1853, art. 8, p. 531; Italy, 1878-1881, art. II, p. 980; 1881, art. 1, p. 983; Sweden and Norway, 1827, art. 13, p. 1753; Austria-Hungary, 1870, art. 11. p. 42; Belgium, 1880, art. 11, p. 97; Germany, 1871, art. 13, p. 554. See also Consular Regulations, 1896, and Moore's Digest, 2;298. The treaty with France 1788-1798, art. 12, Malloy, p. 495 gave consular courts jurisdiction "of all differences and suits between subjects" of the respective countries. See Moore's Digest 2;83-85.

40 Cushing Att. Gen., 8 op. 380, (1857).

41 See Moore's Digest, 2;298.

42 Act June 11, 1864, 13 Stat. 12, Judicial code, 1911, 36 Stat. 1087, sec.

and officers to issue process on application of consuls in fulfillment of treaty obligations when that country accorded reciprocal privileges as attested by proclamation of the president. The president has proclaimed this situation with reference to most of the treaties in force.43 The courts have enforced these provisions by refusing jurisdiction of cases coming within the consular privileges, but it has been held that where disturbances affect the tranquillity of the port, the national courts may always exercise jurisdiction.45

(5) An exemption from territorial jurisdiction which if carried to excess might become a source of public danger is that granted to persons within diplomatic residences, consulates or public vessels. This is known as the right of asylum. It should be noted that the immunity of public vessels and diplomatic and consular residences does not necessarily imply a right of giving asylum. Thus a great many treaties declare that consular residences shall be inviolable, but "in no case shall their offices and dwellings be used as places of asylum."47 Although this distinction may exist in reference to the duty of the foreign privileged authority, it can not with reference to the duty of the state upon whose territory this authority is located. If the state must acquiesce in the immunity from entry of a diplomatic residence or a public vessel, it must also acquiesce in its use as an asylum, so far as immediate assertion of its authority is concerned. It can of course protest and recover the fugitive by diplomatic means.

43 Proclamations Feb. 10, 1870, May 11, 1872; See Moore's Digest, 2;299.

44 Tellefsen vs. Fee, 46 N. E. 562, (Mass.); The Elwine Kreplin, 9 Blatch. 438; Williams vs. Wellhaven, 55 Fed. Rep. 80.

45This exception to the consular privilege is specified in all of the treaties mentioned, (note 39), except that with France 1853, art. 8, p. 531. See Wildenhus' case, 120 U. S. 1; Com. vs. Luckness, 14 Phila. 363, (Pa.); Taft, Att. Gen., 15, op. 178, (1878).

46 On the right of asylum see Moore's Digest, 2;755. In early times the privilege of giving asylum was recognized and often abused. Moore says, "In some instances ambassadors of a thrifty turn realized enormous profits by hiring and granting their protection to houses which they then sublet to malefactors". Moore's Digest, 2;759.

47 See Treaties with Netherlands, 1878; Salvador, 1870; France, 1853; Belgium, 1868; 1880; Italy, 1868; 1878; Roumania, 1881; Servia, 1881; The German treaty of 1871, art. 5, Malloy p. 552, declares that consulates shall be inviolable "except in the case of pursuit of crime." See Moore's Digest, 2;755-757.

In its diplomatic instructions, consular regulations and naval instructions, the United States forbids the granting of asylum except in unusual cases.48 This is the practice generally required by treaties and may be said to be the law, although in a number of cases American officials have given asylum, especially to political refugees in South American countries.49

On the other hand the United States has generally recognized the immunity of diplomatic residences and foreign vessels of war from entry and service of legal process, although in an opinion of 179450 Attorney General Bradford held that a writ of habeas corpus could be served on a foreign public vessel, while in 179951 Attorney General Lee thought civil or criminal process might be served in a British man of war. In an opinion of 185552 Attorney General Cushing emphatically maintained the doctrine of exemption, going even to the extent of extraterritoriality. In several treaties the right of asylum to slaves on public vessels is affirmed, and in the Brussels act of 189054 slaves fleeing to war vessels of the signatories are declared to become free. Consulates do not enjoy immunities, by international law, and consequently could under no circumstances give asylum, unless immunity is granted by treaty, as is done in a number of cases.

53

Acquiescence in the right of asylum, so far as it is necessitated by the immunity of diplomatic residences, consulates and public vessels from territorial jurisdiction, is enforced by the same means;55 but there is really no duty of acquiescence, for the

48 See Diplomatic instructions, 1897, sec. 49-51; Consular Regulations, 1896, sec. 80; Navy Regulations, 1913, sec. 1649.

49 See Moore's Digest, 2;781-883.

50 Bradford Att. Gen., I op. 47, (1794).

51 Lee Att. Gen., I op. 87, 89, (1799).

52Cushing Att. Gen., 7 op. 112; 8 op. 73, (1855, 1856).

53 By the treaty with Algiers of 1795-1815, art. 11, Malloy p. 3, the return of slaves fleeing to public vessels was required; by that of 1816-1830, art. 14, p. 14, Christian captives fleeing to United States public vessels might be granted asylum. By the treaty with Tunis 1797-1824, art. 6, p. 1795, the return of slaves was demanded, but as amended in 1824-1904, art. 6, p. 1801, slaves gaining asylum were free. The treaty with Madagascar, 18811896, art. 7, p. 1071, forbade the giving of asylum to slaves.

54 General act for the Repression of the Slave Trade, Brussel's Convention, 1890, art. 28, Malloy, p. 1975.

55 See U. S. vs. Jeffers, 4 Cranch C. C. 704, Scott, 256, (1836), in which a constable was removed from office for arresting a fugitive slave in the house of a British Secretary of Legation. See British case, Forbes vs. Cochrane, 2 Barn. & Cress, 448, (K. B. 1824), Scott, 258, where it was

state may, within its international right, protest the matter diplomatically.

Resident subjects of foreign states are permitted no special privileges or exemptions from territorial jurisdiction except those specifically accorded by treaty, such as military exemptions. In these cases the courts by directly enforcing treaty provisions as law may enforce the states' duty of acquiescence.

LIABILITIES ATTACHED TO NEWLY ACQUIRED TERRITORY

The second duty of acquiescence relates to the rights of the inhabitants of newly acquired territory and the liabilities attached to the land. The rules governing these matters are ordinarily spoken of as the law of succession. According to the strict principle of territorial sovereignty, as soon as new territory is acquired, any relations between its inhabitants and the new government would become matters of municipal law. No obligations of international law could exist. The actual law, however, recognizes this case as an exception to the usual rule of complete territorial sovereignty. The land must be taken subject to a kind of servitude. The acquiring state must acquiesce in pre-existing rights of the inhabitants and pre-existing rights of third parties hypothecated upon the territory. These obligations may be classified under three heads: (1) treaties imposing obligations upon the former sovereign, (2) liabilities attached to the territory, (3) rights of the inhabitants derived from the former sovereign.

held that slaves reaching a British warship became free; hence Forbes, the owner of a plantation in Florida, had no action against Cockburn, commander of a public vessel, for affording asylum to and carrying off such fugitive slaves. For extended discussion of rights of asylum on public vessels and limits of local jurisdiction over such vessels in port according to English law, see Report of Royal Commission on Fugitive Slaves, 1876. Great Britain forbade public vessel to give asylum to slaves by an order of 1875, (Br. and For. St. Papers, 66;892). The Royal commission appointed to consider this order held as follows: For right of asylum and extraterritoriality, Phillimore, Bernard, Maine; Contra, Cockburn, Archbald, Thesiger, H. T. Holland, FitzJames Stephen, Rothery, but they held that asylum might be given as a matter of humanity and in any case the local authorities could not recover the fugitives by entry of the vessel. It is interesting to note that the line of cleavage is between publicists on international law and common law lawyers and judges. See in reference to the work of this commission, Maine, Int. Law, p. 88; Stephen, Hist. of the Criminal Law, 2;57; Jour. of Jurisprudence, 20, 1888; Moore, Digest, 2;848.

(1) International law requires the new sovereign to recognize the obligations of treaties concluded by the old sovereign only in case of universal succession. There have been two cases of this character in the history of the United States, those of Texas and Hawaii. Both states had concluded treaties with third parties before annexation.56 In both cases, in the resolution of annexation the United States declared all treaties of the former states abrogated. Japan offered some protest to the abrogation of her treaty with Hawaii but the United States disavowed any intention of violating vested rights of Japanese subjects under this treaty, and no specific case seems to have arisen.57

(2) The second case has arisen in connection with the annexation of Texas and Hawaii and the cessions of Spain following the war of 1898.58 The United States assumed by statute liabilities hypothecated upon the revenues to a specified amount in the first two cases.59 In the case of the Spanish cessions the

56 See Treaties of Texas with France, 1839, Marten's N. R., 16;987: with Great Britain, 1840, Marten's N. R. G., 4;1506: 1841, Ibid. 4;609: with Netherlands, 1840, Ibid. 1;375: See Moore's Digest, 1;456. Texas had also concluded treaties with the United States, see Malloy, pp. 1778-9, which were of course abrogated by annexation. See treaty of Hawaii with Japan, 1886, Br. and For. St. Pap., 77;941.

57 Joint Resolution, Mch. 1, 1845, 5 Stat. 797; July 7, 1898, Sec. 4, Germany claimed that she retained special rights in the Zulu Archipeligo under protocol with Spain of Mch. 11, 1877, after cession of the Philippines to the United States, a contention denied by the United States. See Moore's Digest 5; 346-352.

58 The Act of Aug. 8, 1790, sponsored by Hamilton, whereby the na tional government, as succeeding to much of the sovereignty of the states by the constitution of 1789, assumed their Revolutionary debts to the amount of $21,500,000, may also be cited as a recognition of the duty of the successor to sovereignty. I Stat. 142, Sec. 13.

59 By the joint resolution of Mch. 1, 1845, 5 stat. 797, consenting to the admission of Texas to the Union, it was specified that Texas should retain public funds, debts, taxes and dues owed the Republic, and vacant lands, to be applied to the payment of debts which were in "no event to become a charge upon the United States." By an act of Sept. 9, 1850, 9 Stat. 446, on consideration of a boundary modification and relinquishment by Texas of "all claims upon the United States for liability of the debts of Texas" the United States agreed to pay $10,000,000 to the state, half of which was to be retained until "the creditors of the state holding bonds and other certificates of the state of Texas for which duties on imports were specially pledged shall first file at the Treasury of the United States,