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ment: "The Maine, on a peaceful errand, and with the knowledge and consent of that government, entered the harbor of Habana, relying upon the security and protection of a friendly port. Confessedly she still remained, as to what took place on board, under the jurisdiction of her own government, yet the control of the harbor remained in the Spanish government, which, as the sovereign of the place, was bound to render protection to persons and property there, and especially to the public ship and the sailors of a friendly power." 18

Sailors from the U. S. S. Baltimore were attacked while on shore leave in Valparaiso on October 16, 1891. Several were wounded and one killed. Chili was at the time in a disturbed condition because of revolutionary movements. Chili paid an indemnity of $75,000 to the injured seamen and to the families of those who had lost their lives." 17

(f) Other public vessels, such as those engaged in hospital, scientific, transport, mail, telegraph, collier, or other service for the government of a state, and under state control, have been granted exemptions.

Public vessels engaged in philanthropic or scientific work and vessels engaged in exploration are usually accorded large immunity from local jurisdiction.

The court decided the troop ship Athol was beyond its jurisdiction when claims against it for damages on account of collision were brought in 1842.18

In the case of The Parlement Belge in 1880 the court decided "that an unarmed packet belonging to the sovereign of a foreign state, and in the hands of officers commissioned by him, and employed in carrying mails, is not liable to be seized in a suit in rem to recover redress for a collision, and this immunity is not lost by reason of the packet's also carrying merchandise and passengers for hire." 19

Colliers and other vessels have been declared exempt from local jurisdiction.20

16 Foreign Relations U. S. 1898, p. 1037.

17 Foreign Relations U. S. 1891, p. 194 ff.; Id. 1892, p. 54 ff.

18 1 W. Rob. Adm. 374.

195 L. R. Prob. Div. 197.

20 Symons v. Baker, K. B. Div. Aug. 4, 1905; Foreign Relations U. S. 1885, pp. 343, 925; The Constitution, [1879] 48 L. J. Prob. Div. 13.

EXTRATERRITORIAL JURISDICTION.

51. In certain states, chiefly those possessing Oriental civilization, the nationals of Western states are by custom or by treaty in a large degree subject to the jurisdiction of their home state, or subject to some court not dependent on the state in which it acts.

From the early part of the seventeenth century, when permanent diplomatic agents began to be sent by states of Western civilization among themselves, the jurisdiction of consuls over their nationals declined. In the Mohammedan states consuls had already large jurisdiction. This was extended by capitulations, from the capitulation of Turkey and Great Britain in 1675, until in many cases this jurisdiction became almost exclusive as to nationals of the consul's own state.21

Similar jurisdiction was by treaty extended to other nonEuropean states. China by treaties of 1844 and 1858 gave large powers of jurisdiction to the consuls of the United States.22 The clauses relating to the United States consular jurisdiction, incorporated in certain other treaties, are of simi

21 A treaty between the Ottoman Empire and the United States in 1830 provides that citizens of the United States charged with crime "shall be tried by their minister or consul, and punished according to their offense, following in this respect the usage observed towards other Franks." Article IV.

22 Treaty between the United States and China 1858:

"Article XI. * * * Subjects of China guilty of any criminal act towards citizens of the United States shall be punished by the Chinese authorities according to the laws of China. And citizens of the United States, either on shore or in any merchant vessel, who may insult, trouble or wound the persons or injure the property of Chinese or commit any other improper act in China, shall be punished only by the consul or other public functionary thereto authorized according to the laws of the United States. Arrests in order to trial may be made by either the Chinese or the United States authorities."

"Article XXVII. All questions in regard to rights whether of property or person, arising between citizens of the United States in China shall be subject to the jurisdiction and regulated by the authorities of their own government. And all controversies occurring in China between citizens of the United States and the subjects of any other government shall be regulated by the treaties existing

lar effect, as in the treaty with Morocco, 1787; Tunis, 1797; Tripoli, 1805; Persia, 1856; Siam, 1856.

By the treaty of 1894 between the United States and Japan the jurisdiction granted to United States consuls by the treaty of 1858 was to come to an end July 17, 1899, and citizens of either state in the other were to have before the courts the rights of natives.

The regulations and laws for consular courts are prescribed by the state accrediting the consul.23

In 1906 Congress established "the United States Court for China" which has "exclusive jurisdiction in all cases and judicial proceedings whereof jurisdiction may now be exercised by United States consuls and ministers by law and by virtue of treaties between the United States and China," where in civil cases the sum involved exceeds five hundred dollars and in criminal cases exceeds a fine of one hundred dollars or sixty days' imprisonment, or both. "The United States Court for China" has appellate jurisdiction in other cases which remain in the jurisdiction of the ordinary consular courts. Appeal may be taken from the "United States Court for China * * * to the United States Circuit Court of Appeals of the Ninth Judicial Circuit," and thence to the Supreme Court of the United States.24

In Egypt there are specially constituted mixed courts, established by a convention of 1875, and exercising their functions since 1876.25 These courts are mainly concerned with civil cases involving nationals of different states. There are three courts of first instance, having four foreign and three native judges, and one court of appeal, with seven foreign and four native judges.

between the United States and such governments respectively without interference on the part of China.

"Article XXVIII. * * And if controversies arise between citizens of the United States and subjects of China, which cannot be amicably settled otherwise, the same shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction."

23 For Great Britain, see Foreign Jurisdiction Act 1890 (St. 53 & 54 Vict. c. 37); Piggott, Exterritoriality, p. 47.

24 Act June 30, 1906 (U. S. Comp. St. Supp. 1909, p. 1045).

25 19 Stat. 662.

SERVITUDES.

52. Restrictions on the free exercise of the jurisdiction of a state in the way of obligation to allow a foreign state to do a thing, or in the way of obligation to a foreign state not to do a thing, are considered as servitudes.26

Servitudes are usually classified as positive, consisting in the obligation to allow a foreign state to do a thing, or negative, consisting in the obligation of the state not to do a thing.

Servitudes may exist by prescription, or may be created by treaty. The right of the dominant state, which has the benefit of the servitude, as against the servient state, which suffers the servitude, must always be strictly construed.

Among servitudes are obligations of a state to allow the exercise of foreign jurisdiction within its territory. The admission of foreign troops, the cession of military and coaling stations, or the grant to foreign states of judicial and police functions, within a state, may give rise to servitudes. Many of these cessions, made in recent years, distinctly state that, while jurisdiction over the area is temporarily relinquished, sovereignty is retained.27 Fishing rights in foreign territorial waters, the right to use foreign coasts or ports for special pur

26 Servitutum non ea natura est, ut aliquid faciat quis, sed ut allquid patiatur aut non faciat. Digest, VIII, 1, 15; Fabres, Des Servitudes dans le Droit International. (1901).

27 For Chinese leases, see Foreign Relations U. S. 1900, pp. 384, 388. In the agreement between the United States and Cuba, February 16-23, 1903, the Republic of Cuba leased certain areas to the United States for coaling and naval stations under the following conditions: "Article III. While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba, over the above-described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas, with the right to acquire (under conditions to be hereafter agreed upon by the two governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain, with full compensation to the owners thereof."

poses, as for landing cables, etc., may be in the nature of servitudes. 28

Many treaties and other agreements have contained provisions by which a state is prevented from doing a thing which in absence of the agreement would be within its competence. Such agreements may place a limitation upon armament, limit the location of fortifications, limit jurisdiction over certain persons or places, or put a state under other disability.29

28 1 Moore, § 163 ff.

29 In some cases the restriction may be mutually undertaken as in article IX of the Russo-Japanese Treaty of September 5, 1905 (Treaty of Portsmouth). "Japan and Russia mutually agree not to construct within their respective possessions on the island of Saghalin, and the islands adjacent thereto, any fortification or similar military work. They likewise mutually agree not to adopt any military measures which might hinder the free navigation of the Straits of La Perouse and Tartary."

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