and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.

This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by pľacing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.

This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.

Among these enumerated classes is that of the foreign military forces. Ships of war are indeed within this class by analogy, but it is not to be assumed that they are governed by the same principles of comity as the land forces in determining their immunity.

The Immunity Accorded Ships of War

In 1811, the Balaou, an armed public vessel of France, entered the port of Philadelphia. A libel was filed in the District Court against the vessel by M. Faddon and others who alleged that she was originally the Schooner Exchange, of which they were the sole owners, and that she had the year before been unlawfully captured at sea by persons acting under the orders of the French Government. The point involved, therefore, was whether an American citizen could assert in an American court a title to an armed national vessel of a foreign country, found within the waters of the United States, or was the ship immune from jurisdiction.

The rule in the case of troops and other land forces is that their exemption depends upon an express license granted by the Government. This license cannot be presumed. But this rule is not equally applicable to war-ships, says Marshall,

for if there is no express prohibition of entry, the ports are considered open. Vessels of war, therefore, enter, in the absence of treaty stipulations, under an implied license. The question then arises as to why vessels of war should be exempt and private merchant vessels are not, when both classes enter under an implied license.

In the first place, it is impossible "to conceive, whatever may be the construction as to private ships, that a prince who stipulates a passage for his troops, or an asylum for his ships of war in distress, should mean to subject his army or his navy to the jurisdiction of a foreign sovereign."

Private merchant vessels, on the other hand, like individual merchants, who spread themselves indiscriminately through a foreign nation, were not exempt, since to permit them to be would prove "inconvenient and dangerous to society and would subject the laws to continual infraction, and the government to degradation."

The foreign government would likewise have no real reason for desiring immunity for its private merchant ships. They are not employed by the government nor are they engaged in national pursuits. While on the contrary a war-ship acts under the immediate and direct command of the sovereign and is employed by him in national objects. Any interference would affect his power and his dignity.

It is to be noticed that in his opinion Marshall makes no reference to the older legal fiction, sometimes termed the territoriality of a vessel, a doctrine that ships are floating portions of the country upon which they depend and are thus a continuation or prolongation of territory, and indeed this fiction is now almost universally put aside as untenable.*

Another important point which should be observed in the opinion is, that the Balaou is not described as an "armed ship of war" but as "a certain public vessel belonging to his Imperial Majesty, and actually employed in his service." Thus a larger class was admitted to exemption.

4 Cf. Hall, Int. Law., p. 212, sec. 77.

In 1879 the English Admiralty Court unhesitatingly accorded immunity to a famous old frigate of the United States. The Constitution, while returning home from the Paris Exposition with a cargo of American exhibits belonging to private parties, was stranded on the south coast of England and received salvage services from an English tug which brought an action against the ship and her cargo for salvage remuneration. The American Minister filed a suggestion, through solicitors, that the Constitution was a national ship of war and that her cargo consisted of property of which the United States Government had for public purposes charged itself with the care and protection. The court then held that no warrant for her arrest could issue, either in respect of ship or cargo.

A similar case had arisen in 1819 in England, where a Dutch ship of war with a valuable cargo of spices and other goods on board was libeled, ship and cargo, for salvage services rendered. It is true that the ship and cargo were held liable under the salvage lien, but this was not until after the Dutch Government had submitted to the jurisdiction by requesting that the amount of recompense due the salvors should be awarded by the Admiralty Court.

It therefore can be announced as a general proposition of international law and comity that armed ships of war and their cargoes are exempt from local process and arrest. However, there is one exception as regards cargo which is well illustrated by the American case of the Santissima Trinidad."

A libel was filed by the Consul of Spain in the District Court of Virginia in 1817 against the cargoes of two armed vessels of the United Provinces of Rio de la Plata. These libeled cargoes were asserted to be part of the cargoes of two

5 The Constitution, L.R., 4 P. D., 39 (1879).

• The Prins Frederik, 2 Dodson, 451.

7 7 Wheaton, 283 (1822).

During the existence of the Civil War between Spain and her Colonies and previous to the acknowledgment of the independence of the latter by the United States, the colonies were deemed belligerent nations and therefore entitled to all the sovereign rights of war against their enemy.

Spanish ships, which had been unlawfully and piratically captured on the high seas by the former armed vessels. Furthermore, it was claimed that the capturing vessels had been originally equipped, fitted out and armed in the United States in violation of the neutrality of this country. The question at issue was then, granting that public ships of war are exempted from local jurisdiction, whether all property captured by such ships is exempt also on the ground that it was captured for and by the sovereign, and that no sovereign is answerable for his acts to the tribunals of any foreign power.

The Supreme Court discussed the principles of immunity, pointing out that it was not founded upon any notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of this property, but that it arose from the presumed consent or license of nations. And, says Story:

It would indeed be strange if a license implied by law from the general practice of nations, for the purpose of peace, should be construed as a license to do wrong to the nation itself, and justify the breach of all those obligations which good faith and friendship, by the same implications, impose upon those who seek an asylum in our ports.... Whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our courts, for the purpose of examination and inquiry and if a proper case can be made out, for restitution to those whose possession has been divested by a violation of our neutrality, and if the goods are landed from the public ship in our ports, by the express permission of our own government, that does not vary the case, since it involves no pledge that if illegally captured they shall be exempted from the ordinary operation of our laws.

The liability of the cargoes of the war-ships in this case was decided on the well known doctrine of prize that property captured in breach of the laws of neutrality is held by the prize courts of the neutral state not to be lawful prize.9 These circumstances will warrant a denial of the usual exemption. As a further explanation of the principle announced in the Santissima Trinidad, however, attention must be called to a related doctrine of prize law to the effect that

Wheaton, International Law, pt. 4, c. 2, par. 14; c. 3, par. 11-13; Halleck, International Law, c. 22, par. 22-24; 1 Phillimore, International Law, 371; 3 Phillimore, ibid., 452-456.

the trial of prizes belongs exclusively to the courts of the country of the captors.10

11

Troop-ships and Transports.—In 1842, the brig of a British Shipping Company was run down in the English Channel by Her Majesty's troop-ship Athol. Upon a suit for damage the court refused to exercise jurisdiction. Nor would it issue a monition against the Lords Commissioners of the Admiralty to answer in the suit.12 These Lords however did later voluntarily appear and jurisdiction was thereupon exercised and damages awarded. And similarly a transport which was arrested under a warrant from the Irish Court of Admiralty in a cause of collision was released by that court upon its being shown that she was the property of the Crown and employed in the public service.13

In the Thomas A. Scott,1 a transport ship owned by the United States, but not commissioned, was exempted and the general doctrine was announced that all public property in the possession of the Government for public purposes is immune from legal process. Conversely civil salvage is allowed in admiralty against a government transport, which has been captured and abandoned by the enemy, and found by salvors in the situation of a derelict not in the possession of the Government.1 15

10 Justice Story in the case of the Invincible, 2 Gallison, 29 (1814), adhered to this doctrine. The Invincible was a French private armed ship duly commissioned as a cruiser, captured by the British and subsequently recaptured by an American privateer, and carried into Portland and proceeded against in the District Court of Maine as prize of war. Two claims were set up against the ship, one by the French Consul and another by American owners of another ship, the Mt. Hope. This latter claim was for damages caused by the Invincible when it had captured and carried off the Mt. Hope on the high seas. The question therefore was as to the legality of the capture of the Mt. Hope by the Invincible. The court refused jurisdiction over the claim on the above principle, even though the Mt. Hope had actually never reached France, having been captured by the British from the French before arrival.

11 The Athol, I W. Robinson, 382 (1842).

12 For a discussion of the British Practice of the Crown submitting to jurisdiction through the appearance of the Lords of the Admiralty, see below, page 69.

18 The Resolute, 33 L. T., 80.

14 10 L. T. (N. S.), 726.

15 The Lord Nelson, Edw. Adm., 79.