As representing the political will of their state, diplomatic agents have immunities similar to those conceded to the sovereign, though by virtue of the fact that the sending of diplomatic agents has long been a common practice, their immunities are quite well defined. These immunities will be considered more in detail under the subject of International Intercourse, but in general a diplomatic agent is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3) local police and administrative regulations, (4) taxes and duties, (5) jury and witness duty, (6) regulations in regard to religious and social action, (7) all exercise of authority by the local state within his official residence or hôtel, (8) and from the exercise of similar authority over his household, official and unofficial.

(b) The exemptions granted to consuls vary in different states and under different circumstances. In general they are entitled to such exemptions as will enable them to perform their functions effectively.1

(c) Any foreign army within the territorial limits of a given state, by permission of the sovereign of said state, is free from the sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his opinion: “In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. . The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments, 1 See § 80 (ƒ) for full discussion.

which the government of his army may require."1 Permission, either general or special, must be obtained in order that an army may enter a foreign state in time of peace. The army must cause the least possible inconvenience to the state during its sojourn.

The military attaché of an embassy is regarded as a member of the official household of the diplomatic agent.

(d) Navy. As a vessel of war can without inconvenience to a foreign state pass through or remain within its maritime jurisdiction, it is customary to accord to the vessel and crew immunity from local jurisdiction and freedom of passage unless withheld for special reason. "Their immunity from local jurisdiction has come to be more absolute than that of the official residence of ambassadors, and probably for the reason that they have the efficient means of resistance which an ambassador has not." 2

3

In general the exemption from local jurisdiction which a vessel of war enjoys in a foreign state extends : (1) to acts beginning and ending on board the vessel; (2) to all boats, etc., of the vessel of war in charge of the crew of the vessel and upon its service; (3) to freedom from customs and all such regulations as are not necessary for the safety of the port (it was held in case of the United States frigate Constitution, in 1879, that she was not liable to salvage charges; the vessel is therefore liable to quarantine, anchorage, etc., rules

1 Exchange v. M'Faddon, 7 Cr., 116, 139.

2 “International Law,” Naval War Col., 2d ed., p. 23.

which imply no derogation of sovereignty); (4) to all persons on board the vessel whether members of the crew or others. This exemption should not be taken as warranting a general exercise of the right of asylum on board vessels of war. Asylum can be granted as an act of hospitality to a political refugee, who cannot use the vessel as a base for political intrigue. Asylum to common criminals cannot be granted without offense to the foreign state. Such criminals are usually surrendered on request of the local authorities.

A commander cannot pursue deserters on shore or exercise external authority.

Hall sums up the general principle as follows, “The immunities of a vessel of war belong to her as a complete instrument, made up of vessel and crew, and intended to be used by the state for specific purposes; the elements of which she is composed are not capable of separate use for those purposes; they consequently are not exempted from the local jurisdiction." 1

In case of abuse of exemptions the state in whose waters the foreign ship of war is, can request it to depart; and if its request is not complied with, can use force, though the customary method is to resort to diplomatic channels.

§ 64. Special Exemptions

(a) In certain Oriental states, the subjects of Western states are by treaty exempt from local jurisdiction. The extent of the exemption in each case depends upon

1 § 55, p. 205.

the treaty provisions. The basis of this exemption is found in the "incompatibility of habits of thought on all legal and moral questions," and the consequent impossibility of obtaining what to the Western states seemed just treatment on the part of Oriental officials. Consular courts were established to meet the needs of foreigners within the jurisdiction of these Eastern states.2 The consuls in these states were invested with special judicial powers, though not considered by the laws of the United States judicial officers. Each state determines the competence of its consular courts in foreign states.

The following rules are general, though not absolute, propositions in regard to the treatment of cases involving natives of Eastern countries and foreigners.

(1) Penal Matters. If a native commits a crime against a foreigner, he is generally tried in the local court.

If a foreigner commits a crime against a native, he is generally tried in the consular court of his

state.

If a foreigner commits a crime against a foreigner of another nationality, he is generally tried in the consular court of the injured foreigner.

If both parties to the crime are of the same nationality, the offenders are tried in the court of their own state.

If the crime is a grave one, such as murder,

11 Whart., § 125.

2 By treaties with Japan, going into effect 1899, such courts were abolished in that empire. 29 U. S. Sts. at Large, 848.

iisdiction Jure

sentence cannot be passed without the sanction of the home government, and in some cases the offender is sent home for trial.

(2) Civil Matters. In cases involving a foreigner and a native, the trial is generally by agents of the two countries.

In cases involving subjects of the same state, their consular court has jurisdiction.

In cases involving foreigners of different nationalities the consular court of the defendant has jurisdiction.

In cases involving large interests, there is an appeal from the consular to the higher courts of the state.

In the East registration of the head of the family at the consulate is necessary to obtain consular protection. Local statutes provide for the execution of treaty stipulations as to consular jurisdiction.1

(b) In Egypt mixed courts were instituted in 1875. This system, arranged by convention, has received the assent of nearly all the European states and of the United States.2

The majority of the judges in these courts are foreigners, and the courts have competence over cases against the Egyptian government, over civil and commercial matters between foreigners and natives, and between foreigners of different nationalities. Jurisdiction for other matters remains in the consuls.

11 U. S. Rev. Sts., §§ 4083-4130; 1 Gould and Tucker, 770–772; 2 ibid., 503; Treaties of U. S., 1279, 1288; 1 Whart., § 125.

2 Proclamation of March 27, 1876; 19 U. S. Sts. at Large, 662.