"The so-called doctrine of asylum having no recognized application to merchant vessels in port, it follows that a shipmaster can found no exercise of his discretion on the character of the offence charged. There can be no analogy to proceedings in extradition when he permits a passenger to be arrested by the arm of the law. He is not competent to determine whether the offence is one justifying surrender or whether the evidence in the case is sufficient to warrant arrest and commitment for trial or to impose conditions upon the arrest. His function is passive merely, being confined to permitting the regular agents of the law, on exhibition of lawful warrant, to make the arrest. The diplomatic and consular representatives of the United States in the country making the demand are as incompetent to order surrender by way of quasi-extradition as the shipmaster is to actively deliver the accused. This was established in the celebrated Barrundia case by the disavowal and rebuke of Minister Mizner's action in giving to the Guatemalan authorities an order for the surrender of the accused. "If it were generally understood that the masters of American merchantmen are to permit the orderly operations of the law in ports of call, as regards persons on board accused of crime committed in the country to which the port pertains, it is probable, on the one hand, that occasions of arrest would be less often invited by the act of the accused in taking passage with a view to securing supposed asylum and, on the other hand, that the regular resort to justice would replace the reckless and offensive resort to arbitrary force against an unarmed ship which, when threatened or committed, has in more than one instance constrained urgent remonstrance on the part of this government.'" 1 1 Moore's "Digest," vol. II, p. 881. TOPICS AND REFERENCES 1. What is Meant by the High Seas— Moore's "Digest," vol. I, 741; vol. II, 885. Oppenheim, 2d ed., vol. I, 321-2. D. D. Field, "Outlines of an International Code," 2d ed., N. Y., 1876, art. 53. 2. The Freedom of the High Seas Oppenheim, 2d ed., vol. I, 315-320, 323-8. Wheaton, 8th ed., Dana, pars. 186-7; Dana's note 113. Grotius, "De Mare Liberum," 1609. Moore's "Digest," II, sec. 319. 3. Jurisdiction upon Vessels on the High Seas and Other Waters— Moore's "Digest," vols. I and II, secs. 174, 321-8. Wheaton, 8th ed., Dana, secs. 100-9, and Dana's notes nos. 62, 66, and 67. H. Taylor, secs. 253-271. Scott's "Cases," 331–342. 4. Piracy Moore's "Digest," II, secs. 311-314. Scott's "Cases," 345-369. 5. Right of Approach Hershey's "Essentials," 226. "Case of the Marianna Flora" (Judge 6. Papers Carried by Merchant Vessels Snow, 2d ed., Appendix I. Moore's "Digest," II, 1002-70. Stockton's "Naval Manual," Appendix VI. 7. Immunities of Men-of-War in Foreign Ports— Chief Justice Marshall, Exchange v. McFaddon (1812). Scott's "Cases," 208, 216. Moore's "Digest," 562-592. Phillimore, I, 3d ed., 476-483. 8. Immunity of Refugees on Board Vessels of War in Foreign PortsMoore's "Digest," vol. II, 845-885. Snow, ed. Stockton, "International Law," 2d ed., par. 29. "U. S. Navy Regulations." 9. Status of Merchantmen in Foreign Ports Phillimore, I, 3d ed., 483-7. Moore's "Digest," II, secs. 204-8, inclusive. Scott's "Cases," 225-237. CHAPTER IX NATIONALITY. ALIENS. EXTRADITION 84. Nationality.-It must be recalled that a state, besides having territory, is composed of certain persons who are its members, that is, individuals who are known as citizens or subjects, or, to use a more comprehensive term, its nationals. All other persons residing within the limits of the territory of the state are known as aliens or foreigners. For internal purposes there may be a distinction made between different classes of a state. Individuals though permanent inhabitants of a state may be denied the name of citizens though fully entitled to its protection. Thus in the United States inhabitants of the Philippine Islands or of Porto Rico are not citizens, but they are nationals and, as such, fully entitled to the protection of the United States at home and abroad. The name and rights of citizens are also refused by France to certain subjected populations in Africa. In Great Britain the term citizen can be used under certain circumstances, but the word subjects is used for all portions of its permanent population, whether civilized, semicivilized, or barbarous. In British India, for instance, there are different laws for the Hindoo, the Mohammedan, or the British whites. They are not under any foreign authority, however, and they are subjects as well as nationals of the British Empire. The national tie between a state and its nationals is not severed by a departure from the territory of the state. The national is entitled to the protection of his state abroad as well as at home. Aliens are not entitled to the protection of any other state than their own when outside of the territory of that state, except that due to any domiciled person and in certain other exceptional cases. The first of these exceptions is that of the alien in the United States who has renounced, or has been renounced by, his own country but who has not had the necessary time of residence to attain citizenship. By the act of Congress of 1907 it is provided that passports can be issued for six months, without renewal, to persons not citizens of the United States, entitling them to the protection of the United States in any foreign country except the country of which he was a national before making his declaration of an intention to become a citizen of the United States, a residence of three years in the United States being also necessary. A second exception as to the protection of aliens is when by international agreement, or for purposes of humanity, a state through its diplomatic or naval agents abroad assumes or gives this protection. Agreements have been made by a small state like Switzerland for permanent protection of its nationals where they have no representative agents, as in Turkey, while a temporary protection may also be given by neutral diplomatic agents in time of war in an enemy's country, as in the Franco-German War of 1870, when the American minister in Paris assumed, by request, the care and protection of German subjects in Paris during its siege by German forces. These subjects were called protégés of the American minister. Instances of naval protection afforded to foreign nationals have occurred also in uncivilized or weak countries like China, and in isolated territory like that of Chile in the Strait of Magellan during penal revolts, and also, in 1877, by men-ofwar on the occasion of a negro insurrection in the Danish West Indies. A third exception takes place in Eastern countries, especially in the Turkish dominions, where protection, in accordance with local custom, may be given to aliens actually in discharge of official and personal service under the direction of consular officers. In addition to these protégés there existed others in times past more than now. For example: "By the laws of Turkey and other Eastern nations," Secretary Marcy wrote in the case of Martin Koszta, "the consulates therein may receive under their protection strangers and sojourners whose religion and social manners do not assimilate with the religion and manners of those countries. The persons thus received become thereby invested with the nationality of the protecting consulates."1 The case of Martin Koszta was as follows: Koszta, by birth a Hungarian and hence an Austrian subject, took an active part in the insurrection of 1848-9 for the independence of Hungary. At the unsuccessful termination of that movement Koszta escaped to Turkey, which country refused to return him to Austria but expelled him from their territory with the consent of Austria and with the understanding that he should go to foreign parts. Koszta came to the United States and established a domicile in this country. In 1852 he made a declaration of his intention to become a citizen of the United States before the proper tribunal in the usual legal manner. After remaining nearly two years in the United States he proceeded to Smyrna, in Turkish territory, on account, it is stated, of private business of a temporary nature, claiming the rights of a naturalized citizen of the United States, and offering to place himself under the protection of the United States consul at Smyrna; the latter official, after a delay, extended protection to him, giving him a letter of safe conduct, which, under the Turkish laws, they have a right to do. While waiting in Smyrna, as is alleged, for an opportunity to return to the United States, he was seized by some people without any authority, treated harshly, and finally thrown into the sea, from which he was picked up by a boat from the Austrian brig of 1 Moore's "Digest," vol. III, p. 832. |