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By the act of Congress of 1856, when any citizen of the Jnited States discovers and works a deposit of guano on any rock or island, not within the jurisdiction of any other state and not occupied by any foreign citizen or subject, and occupies the island, it may be considered as territory of the United States. Such islands and rocks, however, are not made a part of the United States, and all offences committed thereupon and in its adjacent waters are held as being committed on the high seas and should be punished accordingly.1

81. Immunities of Foreign Vessels of War in Ports and Waters.-A port of entry for the free use of men-of-war and merchant vessels and for commercial purposes in connection with them is created by municipal law. A foreign vessel can by the comity of nations take refuge and anchor in the case of bad weather, as a matter of safety, in any bay or harbor of a foreign jurisdiction, even where entrance to a port is generally denied to such visits and confined, as in China and Japan, to what are known as treaty ports.

There are certain ports which men-of-war or other vessels are denied the use of, in part or in whole or in peace or war, for military reasons alone. In other ports, for military reasons, there are limits imposed as to the number of foreign war vessels to be allowed at any one time, of any one nation, in the port. Examples of this latter kind will be found as to Constantinople in Turkey, Vladivostok in Siberia, and the New Harbor of Singapore.

No foreign, national, or privately owned vessel in time of peace or war is permitted to visit, except by special authority of the United States Navy Department in each case, the ports of Pearl Harbor in the Hawaiian Islands, Subig Bay in the Philippines, Guam, Great Harbor, Culebra, the Guantanamo Naval Station, Cuba, the Dry Tortugas, Florida, and Kiska in the Aleutian Islands.

As a rule, however, where there are no express prohibitions, the ports of one state are considered to be open to the public Brightley's "Digest," p. 301.

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and privately owned vessels of every other nation with whom it is at peace.

In the case of the Exchange, the decision of Chief Justice Marshall of the Supreme Court of the United States gives sound and well-defined reasons for the exemption of men-ofwar from the general jurisdiction of the state in which the port is situated. Such vessels are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under an express permission, stipulated by treaty, or a permission implied from the absence of prohibition.

The Exchange had originally belonged to an American citizen but had been seized and confiscated at St. Sebastian, in Spain, and converted into a public armed vessel by the Emperor Napoleon in 1810, and upon her arrival in Philadelphia was claimed by her original owner. Chief Justice Marshall said: "The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit as promoted by intercourse with each other and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent might, in some instances, be tested by common usage and by common opinion growing out of that usage. . .

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"It is impossible to conceive," said Vattel, "that a prince who sends an ambassador or any other minister can have any intention of subjecting him to the authority of a foreign power. . . . Equally impossible was it to conceive 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. And if this could not be presumed, the sovereign of the port must be considered as having conceded the privilege to the extent in which it must have been understood to be asked.

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"A clear distinction is to be drawn between the rights ac

corded to private individuals or private trading vessels and those accorded to public armed vessels which constitute a part of the military force of the nation. . . . The situation of a public armed vessel is, in all respects, essentially different; she constitutes a part of the military force of her nation, acts under the immediate and direct command of the sovereign, is employed by him on national subjects; he has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state; such interference cannot take place without seriously affecting his power and dignity. The implied license, therefore, under which such vessel enters a friendly port may reasonably be construed, and it seems to the court should be construed, as containing an exemption from the jurisdiction of the sovereign within whose territory she claims the rights of hospitality.'

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Besides the vessel itself, the immunity of a man-of-war is extended to its boats, tenders, rafts, and other appurtenances. The ship must, however, respect the administrative and sanitary rules of the port, such as to pilots when used, to places and methods of anchoring, regulations for quarantine, landingplaces, and the disposal of refuse, etc. In case of war, the foreign vessel is held to observe the neutrality of the port.

A vessel of war, according to the best authorities, is exempt from the visitation and search of the officials of the customs of the foreign port. By the regulations of the United States navy, commanding officers are strictly forbidden to allow any examination whatsoever of the ships or boats under their command by foreign officers of the customs.

They are also forbidden to permit any ship of the navy under their command to be searched by any person representing a foreign state, nor are any of the officers or crew to be taken out of her so long as they have the power to resist. If force is used for such purpose it must be repelled."

1 "The Exchange," 7 Cranch 135, and Scott's "Cases."
"U. S. Navy Regulations, 1913," secs. 2045, 2046, 2047.

Lampredi, a distinguished Italian authority, in referring to the immunity of a vessel of war in a foreign port, says: "Such a ship of war cannot exist and be governed without the perpetual duration of military command, which consequently continues to be exercised in all of its extent within the vessel, more in virtue of the concession of the prince who receives the ship than from any right on the part of the captain, much less in virtue of any territorial right."1

As expressed above, the commanding officer of a vessel of war retains, of course, his usual authority to maintain order and discipline and to establish the necessary tribunals to punish offences committed on board or on shore by persons under his command, in violation of the laws or discipline of the naval service of his country. It is not legal, however, in the United States navy to have such courts convene or hold session on shore in foreign territory. In case a crime is committed on board a vessel of war, by a person or persons not belonging to the ship or the naval service of his country, the commanding officer may, with propriety, deliver the parties concerned to the local authorities. If the offender and injured person are both citizens of the state in which the port is situated, it is his duty in ordinary cases to deliver the criminal to the local authorities.

As to ordinary criminals seeking to escape arrest and punishment for crimes committed on shore by taking refuge on board foreign vessels of war, it is wrong to harbor them, whether they are of the nationality of the port or of the vessel of war. By usage, this privilege of refuge may be said to be confined to fugitive slaves or persons who are pursued for political offences alone. The surrender and denial of refuge is at the discretion alone of the commanding officer. This is especially the case if the person concerned has reached the ship; he cannot be taken out without the order or permission of the commanding officer. Under no circumstances have the local authorities

1 Lampredi, "Tratt. del Comm.," chap. X, p. 1.

the right of seizure or arrest on board foreign vessels of war. If delivery is refused, further proceedings must be by means of diplomatic channels.

82. Immunity from Arrest When Asylum Is Sought on Board Vessels of War.-Under the general rule of international law and courtesy it is considered wrong to offer or afford an asylum to a criminal or to a person charged solely with a crime against the state in whose friendly waters a vessel of war happens to be for the time. If, however, a criminal of any kind succeeds in getting on board a foreign vessel of war, he cannot be apprehended or followed on board by the police or local authorities. The commanding officer has a right to judge for himself whether the crime charged as non-political is so or is only used as a pretext to prevent asylum being granted to a person in flight for his life on account of his political acts.

The regulations of the United States navy read as follows upon this subject: "The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur and constant instability of government exists, usage sanctions the granting of asylum; but even in the waters of such countries, officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not, directly or indirectly, invite refugees to accept asylum."1

It is hardly necessary to add that a rigid impartiality should prevail in all such cases between political parties, and that refugees granted asylum should not be allowed to open nor maintain communication with the shore for political or any other purpose.

In former times, when slavery existed in countries that were classed as enlightened, it was customary to surrender fugitive slaves who had sought refuge on board vessels of war. This

1"U. S. Navy Regulations, 1913," Art. 344.

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