I am disposed to think, though not without some hesitation, that the answer must depend on the question whether the deck of a ship of war in foreign territorial waters is or is not regarded by the law of England as being to all intents and purposes part the soil of England? that if that question is answered in the affirmative, the slave would have such a right of action; and that if it is answered in the negative he would not. My hesitation arises from a doubt whether the commanding officer might not at all events justify the expulsion of the slave from his ship on the ground that as a mere stranger and trespasser he had no right to be there, and that the captain could not be responsible for the consequences of his removal.

Upon this two observations occur. First, to take this ground, is to evade the real question. There is no substantial difference between delivering a man up to slavery and compelling him to leave a ship under such circumstances, that the inevitable consequence of such expulsion must be his return to slavery.

Secondly, it seems very doubtful, to say the least, whether the right of a commanding officer or even of the owner of a house or land to remove a trespasser by force from his property extends to cases in which serious personal injury would be caused to the trespasser by such removal, and in which no personal injury or danger would be caused to the proprietor by the trespasser's presence.

The captain of a steamship plying between England and America would have no right to throw overboard a person who had secreted himself on board in order to steal a passage, and it would be to say the least very doubtful whether it would not be the captain's duty to supply him with the bare necessaries of life, of course at a reasonable price and if a sufficient supply for the purpose were available. If a furious mob chased a man whom they wished to ill use or murder into a barrack square which they were afraid to enter, the right of the officer in command to turn him out as a trespasser would be to say the least exceedingly doubtful. If in a flood a trespasser took refuge in another man's house the owner would surely have no right to put him by force into the water, and in the same way if a slave on the deck of a British man of war has by the law of England all the rights what he would possess in the streets of London, I should doubt the commanding officer's right to deprive him of them by forcing him to leave the ship, unless, indeed, his presence there was dangerous to the crew, as might be the case if the ship were short of provisions or the slave had the plague.

Hence the question as to the slave's right to remain on board the ship, and to sue the commanding officer for damages for compelling him to return to slavery appears, if not absolutely to depend upon, at all events to be closely connected with the question, Whether by the law of England the deck of a British ship of war in foreign territorial waters is to every intent part of the soil of England?

I am of opinion that this question must be answered in the negative, first because no authority can be found for an answer in the affirmative, and next because it can be shown that such an answer would involve monstrous consequences.

The best illustration of this will be found by reference to the case of crimes. If the proposition in question were law it would follow that in the case of the Italian murdering an Italian on board a French ship in Portsmouth harbour the Court at Winchester would have no jurisdiction, for an English court cannot try a foreigner for a crime committed in France. Again, suppose that whilst a British ship was in a French harbour two French workmen employed on board were to quarrel, and one was to kill the other. What would be the duty of the captain? Clearly his first duty would be to place the offender in arrest, but having done so, would it be incumbent on him to carry him to England to be tried, or might he deliver him up to the French authorities? There can be no doubt that the latter would be the only rational course. It might, indeed, be the only one which would not cause a failure of justice, for if the witnesses were Frenchmen (which might easily happen) the captain could not carry them as well as the accused person to England, nor could he take their evidence to be used at the English trial. If, however, an English ship of war is English ground to every intent, a crime committed on board such a ship is a crime committed in England, and must be tried by English law in an English court. The man must accordingly be kept in custody till he can be brought before such a court, and this might be attended with the greatest possible inconvenience.

war.

Take again the case of an ordinary criminal who takes refuge on board a ship of How is he to be dealt with? To say that he is not to be delivered up to the local authorities at all is an intolerable conclusion. But if he is to be delivered up, and if a British ship of war is strictly and for all purposes British territory, he can be delivered up only according to the procedure prescribed in the Extradition Acts and under the provisions of an extradition treaty. The Extradition Acts (33 & 34 Vict.

c. 52, and 36 & 37 Vict. c. 60) not only do not make any provision for such a case, but they prescribe a course of procedure which could not possibly be observed by the commanding officer of a ship of war. For instance, the prisoner is to be taken before a magistrate, and an opportunity is to be afforded him of applying for a writ of habeas corpus. Besides there are many countries with which we have no extradition treaties, and in such cases, if the doctrine that a British ship is British ground is carried out strictly no extradition at all could take place, and Her Majesty's ships would be degraded to the position of asylums for criminals.

These consequences appear to me to reduce the supposed principle ad absurdum. But if it fails what is there to interfere with the operation of the ordinary law of the place upon the natives of the country, except the practical difficulty of enforcing it? The inference is that a slave delivered up by a British commanding officer to the local authorities on a demand made by them in accordance with the local law would, if he afterwards reached England, have no right to recover damages against the commanding officer for assault and false imprisonment.

The case of R. v. Lesley (Bell's C. C., 220) appears to support this view of the subject. In this case the captain of an English merchant vessel was indicted for assault and false imprisonment in having received certain prisoners on board his ship in Chilian waters and carried them against their will to Liverpool. It was held that the defendant's conduct in Chilian waters constituted no offence, but that as soon as the prisoners were detained against their will on the high seas an offence was committed. The principle upon which the former part of the decision proceeded was thus stated by Lord Chief Justice Erle. "We assume that the Government could justify all "that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the Government and under its authority." The ship concerned in this instance was a merchant vessel, but if the commanding officer of one of Her Majesty's ships chose to act as the agent of the government of the country, why should he not be entitled to the same protection as the master of the merchant vessel? The only ground on which the two cases could be distinguished would be the principle that a man-of-war is for all purposes part of the soil of England, and I have shown that this principle would lead to consequences which refute it.

If this view is correct the law of England would seem to correspond with the law of France, if M. Theodore Ortolan is accepted as an authority on that subject. No one rates so high as M. Ortolan the ex-territorial character of ships of war, yet in the 14th chapter of his work he deals with the subject just discussed as follows:

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Lorsque le navire de guerre est dans un port ou dans les eaux territoriales d'un état étranger il est véritablement dans un espace soumis à la propriété ou à la souveraineté de cet état, que si en considération de son caractère de navire de guerre y jouit d'une franchise illimitée cette franchise ne peut pas être invoquée comme un droit personnel par les étrangers réfugiés à son bord; que s'il est vrai que ces étrangers sont à bord, il est vrai aussi qu'ils sont encore dans le port ou dans les eaux territoriales de l'état dont ils ont encouru la justice repressive; ou conclura de toutes ces observations tout en maintenant l'inviolabilité du navire de guerre sur lequel les autorités locales n'ont aucune prise, que l'étranger qui y est refugié n'est pas absolument dans la même situation que s'il était refugié sur le territoire de l'état auquel appartient ce navire, qu'il ne peut reclamer en sa faveur l'emploi des mêmes règles et des mêmes formes que s'il était sur ce territoire; qu'il faut distinguer ce cas de celui de la véritable expulsion du territoire ou de l'extradition proprement dite. En un mot qu'il est de toute necessité que le commandant ait une certaine latitude d'appréciation, et un pouvoir de se décider et d'ordonner lui-même immédiatement."* Upon the whole, the conclusion at which I arrive is that whatever may be the precise extent of the privilege accorded by international law or usage to ships of war in foreign territorial waters, it is generally speaking the duty of the commanding officers of such ships to deliver up to the local authorities persons who have broken the local law and taken refuge on board, and that the law of England does not forbid the discharge of this duty. This is the general rule. I do not know that any one disputes it in cases of ordinary laws. The real question is, whether a special exception is to be made in the case of persons who break the laws relating to slavery in countries where slavery is established by law. I do not say that this should not be done, but if it is done it should be done openly and avowedly as an act of power, as an invasion on moral grounds of the sovereignty of independent nations. I do not see how it can be justified as an exercise of a legal or quasi-legal right.

*Dipl. de la Mer., I. 298-9.

The last set of obligations to be considered are the respective rights and duties of the slave owners and the commanding officers of ships of war in the territorial waters of the state of which the slave owners are subjects. The question here is Whether a slave owner could sue the commanding officer of a ship of war for harbouring his slave if he refused to deliver him up to the owner? On this point it is unnecessary to enter at length. The case of Forbes v. Cochrane (2 B. & C. 448) seems to imply that such an action would lie as the judgment in favour of the defendant in that case proceeded, on the ground that the ship in which the slaves were received was not in Spanish waters at the time when they were received; but questions of great difficulty and delicacy might arise as to the degree of assistance which a commanding officer is bound to give to a slave owner seeking to enforce such a right. I am disposed to doubt whether the commanding officer might not lawfully refuse to discuss the subject with anyone except the local authorities, and refuse to permit the slave owner to enter his ship on such an occasion. I cannot see that the officers or men would be under any obligation either to assist the owner if he did come on board in the hateful task of removing the slave or to prevent the slave from defending himself. The commission of scenes of actual violence on the deck of a man of war by private persons seeking to establish private rights, would not only be most unseemly in itself, but would be altogether opposed to the objects for which privileges (whatever their extent may be) are granted to such ships.

The most important observation which arises upon this part of the subject is that if instructions based upon the recommendations made in the Report should be issued to commanding officers, an officer who acted upon them in good faith would be liable to no proceedings by any slave owner, as his conduct would fall expressly within the principle of Buron v. Denman, and the other cases which decide that no action lies against a public officer by a foreigner for acts done by the public officer as acts of state and under the orders of his own Government.

To sum up the conclusions at which I have arrived I think

(1.) That commanding officers of British ships of war in territorial waters are under an obligation, imposed by international law, to deliver up fugitive slaves who have taken refuge on board their ships when required to do so by the local authorities, in accordance with the local law.

(2.) That the law of England does not forbid them to discharge this obligation. (3.) That it is doubtful whether by refusing to discharge it they might not incur a personal responsibility to the owner of the slave.

(4.) That the privilege of exterritoriality (whatever may be its exact nature and extent) is really irrelevant to the subject.

I am conscious that this view of the matter must, in some cases, lead to consequences from which every humane person must revolt. When we reflect upon the atrocious cruelties which have at different times and in different countries been sanctioned by law, and which in some countries are still so sanctioned, it must be admitted that if naval officers are directed to respect and give effect to the local law in every part of the world in which they may be, they will at times have to facilitate the commission of cruel and wicked acts.

To deliver up a slave bearing on his or even on her body the marks of the chain and the lash, and to do so with a full conviction that the consequence will be his or her torture, violation, or death, is an act of which it is difficult indeed to think with calmness, especially when by the supposition the agent bears the Queen's commission, and the scene is the deck of a British man-of-war.

However it is by no means true that an act cannot be sanctioned by international law because it is wicked and cruel, for international law, though invaluable, is imperfect, and is concerned with imperfect institutions. It is impossible to exaggerate the wickedness and cruelty inseparable from war, yet war is the ultimate sanction on which international law depends. In the great case of Campbell v. Hall (20 S. T. 323) Lord Mansfield said, that upon conquering a country the King "has power to "refuse a capitulation. If he refuses and puts to the sword or extirpates the inhabi"tants of a country the lands are his." International law, therefore, may sanction acts more cruel than slavery itself. With every respect for the opinion of those who are able to arrive at a more agreeable conclusion, it seems to me that the fundamental principles of international law when consistently applied require the commanding officers of ships of war in foreign territorial waters to refuse protection in all cases whatever to those who break the local law, and to deliver up, on a lawful demand, political refugees, the victims of religious persecution, and slaves who have received or expect

from their owners the treatment which a vicious brute would experience from a cruel master. I prefer the explicit admission of these consequences, revolting as they are, to what presents itself to my mind as an attempt to evade them by applying the legal fiction of exterritoriality to a purpose for which it was not designed, and I join in the recommendations of the Report, because I regard them as a proposal that the British nation should deliberately take in this matter the course which it regards as just and expedient, although it is opposed to international law as it stands, and aims at its alteration and improvement. It is impossible to foresee the results which might follow from adopting the legal fiction of exterritoriality in its full extent, but it is easy to imagine cases in which it might be in the highest degree injurious to the interests of this country.

I must, in conclusion, point out that the difference of opinion which exists in the Commission is purely theoretical. Some of us think that international law is what it ought to be. Others think that it requires amendment in order to make it what it ought to be, but there is a close approximation to unanimity as to the state of the law which would on general grounds be desirable.

J. F. STEPHEN.

V.

An Examination of the Authorities cited by Historicus, as to the Exemption of a Ship of War from the Local Jurisdiction when she is in Foreign Territorial Waters; with an Inquiry into the Nature and Extent of that Exemption.-By Mr. H. C. Rothery, &c. &c.

Historicus.

Casaregis.

cr

I.

Historicus, in his letter of the 4th of November 1875, states that he has seen "with much surprise that the doctrine of the absolute immunity of a public ship, and all persons and things on board of it, from local jurisdiction and the operation of local law, when lying in "the territorial waters of a foreign State, has been treated as a doubtful proposition." "I had certainly supposed," he says, "that in the whole range of public law there was no position more firmly established by authority, more universally admitted by Governments, or one which had been more completely accepted in the intercourse of States, as "unquestioned and unquestionable." That a public ship of war is just as much exempt "from the operation of foreign law, within the ports of another State by whom it is received, as it is on the high seas, is, I believe, a thing which no statesman now questions, "and no jurist doubts." The precedents, the practice, the authorities, the reasoning, are all

CC one way.

Let us understand clearly to what extent the writer would wish to carry the immunity of a ship of war. He contends that not only is the ship itself, its officers, and crew, and all belonging to it, exempt from the local jurisdiction, but that "all persons and things on board of it" are equally exempt, and this, too, whether the ship be upon the high seas, or within the territorial waters of a foreign State. It is contended that a ship of war is a portion of the State to which she belongs, even when she is in foreign territorial waters, so much so that if a subject of the foreign State itself should come on board her, he would, whilst he remained on board, be exempt from the jurisdiction of his own country, and not amenable to its laws. Let us see whether the authorities which are cited support this position.

1. The first authority cited by Historicus is that of Casaregis, who, in his book entitled "Discursus legales de Commercio," speaking of an army or a fleet on foreign soil or in foreign waters, says, "Tunc tota jurisdictio super exercitum vel classem residet penes principem "aut ejus ducem, quamvis," &c.; and from this passage Historicus argues the total and absolute immunity, not only of the ship of war, her officers, and crew, but of all persons who may be on board her, whether they belong to the ship or not. If however I read the passage correctly, as well as a somewhat similar passage to be found in the same Discourses, 136, all that Casaregis says is, that the commander shall have the entire jurisdiction over the army or over the fleet, that is to say, over all that belongs to or constitutes the army

or the fleet; but he nowhere says, so far as I am aware, that he is to have jurisdiction over every person who may happen to be within the lines of the army, or on board the fleet. Take the case of an army on its march through a foreign country, with the consent of course of the sovereign of the foreign State, which is the case supposed by Casaregis, is it contended that the ground which that army covers has for the time become so completely a portion of the State to which the army belongs, that all the persons within the lines, whether they belong to or form part of the army or not, are subject to the jurisdiction of the commander of the army, and are to be governed by the laws of the State to which that army belongs? And, in the same way, is a ship of war so much a portion of the territory of the State to which she belongs, that even when she is in foreign waters, not only her crew and all who belong to her, but also every person who may be on board her, is to be regarded as being in the country to which the ship belongs, and, as such, subject to its laws? I am not now saying that such an immunity may not belong to a ship of war, but Casaregis does not say so; all that he says is that the commander shall have complete jurisdiction over the army and over the fleet, but he does not say that he shall have the same jurisdiction over all persons and things which may happen to be within the lines of the camp or on board the fleet. Casaregis, then, when examined, is no authority for the position for which Historicus contends, namely, the entire immunity not only of the ship of war, but of all persons on board her, whether belonging to her or not, from the local jurisdiction of the State within whose waters she may happen to be.

2. The next authority to which Historicus refers, and on which he seems mainly to have The schooner relied, is the case of the schooner "Exchange;"* but after the most careful and attentive "Exchange." perusal of that case, it appears to me that, so far from supporting the proposition for which Historicus contends, it is an authority the other way.

The case of the schooner "Exchange" was that of an American merchant vessel, which had been seized by the French in the port of St. Sebastian, in Spain, under the Rambouillet Decree, and confiscated. She was then converted by the Emperor Napoleon into a ship of war, and sent on a cruise. Whilst still a ship of war belonging to the Imperial French navy, she had occasion to enter the harbour of Philadelphia, and was there seized at the instance of her former owners, on the ground that the original seizure and confiscation of the vessel by the French was illegal.

Now it will at once be seen that this case of the "Exchange," has nothing whatever to do with the question which we are considering. Chief Justice Marshall in his judgment states very clearly what the issue was; it was," whether an American citizen can assert, in "an American court, a title to an armed national vessel found within the waters of the "United States." The District Court, too, from which the case was originally appealed, by its decree showed what the question at issue really was, holding+ "that a public armed "vessel of a foreign sovereign, in amity with our Government, is not subject to the ordinary judicial tribunals of the country, so far as regards the question of title by which such sovereign claims to hold the vessel." That was the only question in the case, and any general expressions which might be found in the judgment, seeming to imply the total exemption of ships of war from the local jurisdiction under all circumstances, may be regarded as mere obiter dicta, and as having no legal validity. But as everything falling from so eminent a judge as Chief Justice Marshall is entitled to the greatest consideration, I propose to examine the case more closely to see whether there is anything in the case to warrant the conclusions which Historicus has drawn from it.

It seems that an appearance was entered to the action on behalf of the French Government, but under protest, by the Attorney General of the United States; and one of the principal grounds on which he contended that the court could not entertain the case was, that the confiscation having been the act of the sovereign in his sovereign character, the civil courts had no right to question it; and that, although the United States Government did not pretend to justify the Rambouillet Decree, they held that the judicial condemnation of the property had covered any irregularity in that respect, and that any question as to the legality of the condemnation must be "a matter of negotiations, or of reprisals, or of war, according to its importance."

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Another argument used by the Attorney General was that the ship had entered the port on an "implied assent that, as an armed vessel of a friendly power, she was entitled to do so without being molested. In the course, however, of his argument, he was careful to show that during the time she had been in the waters of the United States, she had conformed "to the law of nations and the laws of the United States," and that "she had committed no offence while there;" not "denying the obligation of a foreign sovereign to conform "to to pre-existing laws," and admitting that the" implied assent," under which she had

* 7 Cranch, p. 116.

† Idem, p. 135.

Idem, p. 120.