statements regarding port jurisdiction. Three of these are given below, with the original source and the Crocker citation, thus providing two references for each opinion. 66 Ports communicating with open seas partake somewhat of same liberty. Some publicists extend to ports the liberty of free navigation as a concession from the sovereign State, but it is a right belonging to all peoples-not a concession. Undoubtedly a State which possesses a seaport has over its waters a right of police and sovereignty in the interests of its defense, but it can not, without plausible reason, refuse to open it to innocent navigation." (Carnazzo-Amari: Traité de Droit International Public en Temps de Paix. Paris, 1880-1882. Translated into French from the Italian by MontanariRevest.) 38 Ports are susceptible of possession. The proprietary State may use all means incident to right of possession. The m.stress of the port may declare it closed, open, or free. Incoming ships may be subjected to such laws and regulations as it may please the State to establish prohibitions and permissions must be of a general character and common to all nations-arbitrary exclusion of any nation would render it subject to legitimate and just complaints. Ortotan: Règles Internationales et Diplomatie de la Mer.) 37 State can exercise absolute police power over ports and harbors. May, at pleasure,"permit or forbid access, subject imports to certain fiscal laws or give them free entry, and subject foreign vessels to such rights and regulations as it pleases it to establish-for example, to pass laws and regulations with reference to the entrance of vessels into the port, their sojourn and movements in the basin, and their loading and unloading, and the security and safety of merchandise. The local authorities can take such measures as seem appropriate to them in the matter of precautions against fire and overheating, ballasting, and unballasting, and refitting of vessels. On all these points States are absolute masters of their judgment. This is the logical conclusion of the right of sovereignty and property. (Nuger: Des Droits de l'Etat sur la Mer Territoriale. Paris, 1887.) 38 ** * * 9. Alexander Porter Morse has contributed to the literature of the subject in an article entitled "Is there a law of the flag as distinct from the law of the port in respect to merchant vessels in foreign waters?" 39 He lists Heffter, Phillimore, Twiss, and Hall as authorities generally cited as believing that there is exclusive local jurisdiction in the ports of any nation over merchant vessels belonging to private individuals and bearing a foreign flag and register; while Webster, Wheaton, Bluntschli, Ortolan, Calvo, Halleck, Dana, Bar, Negrin, Masse, and Laurence maintain "that there is a law of the flag which is sometimes of exclusive and sometimes of concurrent jurisdiction.' 40 (Here again it should be stated that the dicussion centers upon jurisdiction in criminal. cases, only referring more or less incidentally to civil matters.) It appears that continental publicists and jurists who have discussed the matter most philosophically and precisely "are committed very positively to the doctrine of the exemption from local jurisdiction of merchant vessels in foreign waters in all matters occurring on board and between officers, crew, and passengers, and in all that concerns the interior regulation and discipline of the vessel, so long as no outsiders are nvolved, and provided the peace and tranquillity of the port is not affer ed Negrin, in his Derecho International Maritimo, pages 100-105, as quoted by Morse," says: "A merchant vessel, then, the same as a ship of war, can not be subject, not even in foreign ports, to any other jurisdiction than that of its own sovereign. "But at the same time the sovereign of the port in whose waters a vessel floats has undeniable right of sovereignty over the port itself and over the littoral waters of the State, by virtue of which and of the freedom of commerce he may prohibit the entrance of foreigners; may admit some and ex 36 Crocker, p. 40. 37 See Crocker, pp. 347-348. 38 Nuger, p. 269; Crocker, p. 314. The comment is added that since common interest is against it, the absolute right is not often exercised. 39 Albany Law Journal, Vol. XLII, pp. 345–354. Nov. 1, 1890. clude others; may impose certain conditions to admission, such as anchorage regulations, custom laws, etc., and may preserve, above all, order and police necessary to the security of his territory and of the individuals who live in it. The territor al jurisdiction of the sovereign is not opposed in any way to the natural jurisdiction of the foreign vessel which floats in his waters. The latter confines its action to the vessel itself and to the indiv duals who compose the crew while they remain on board; the former affects the locality of a port and the land which surrounds the waters. From the moment * * * a ship arrives in a foreign port her jurisd ction is strictly limited to the vessel and to the mutual relations of the individuals who are on board; all other relations of these individuals and of this vessel with the territory and the waters in which she is found fall naturally under the jurisdiction of the local sovereign to whom they belong. * * * "From this it follows, as a general rule, that the commanders and captains of ships of war and merchant vessels are bound to respect and to comply with all the domestic laws of police, health, customs, and whatever else, in discharge of its rights, the authority of the port in whose waters they are may promulgate relating to the order and general police of the same. [The territorial sovereign in extending hospitality] has reserved the custody of its own safety and the duty to protect the interests of its subjects." Mr. Morse, as the result of his study, reaches the following conclusions: (1) There is a law of the flag exclusive of the law of the port when acts and crimes occur on the high seas between crew, officers, and passengers without disturbing or compromising the peace of the port. (2) The law of the flag and the law of the port may exercise concurrent jurisdiction in the case of the lesser offenses when from necessity or because of sufficient reason the law of the flag waives its jurisdiction or right in favor of port law. (3) The law of the port is exclusive of the law of the flag in matters disturbing or compromising the peace of the port, such as murder and other heinous crimes; furthermore, the law of the port is paramount in "all that respect the laws of navigation, the harbor. police, and health regulations." *3 (4) Treaty provisions and statutory stipulations may apply to specific cases. (C) Court decisions.-1. Schooner Exchange v. McFaddon and others." The case of the schooner Exchange v. McFadden and others in the earlier days of our Supreme Court furnished occasion for notable statements concerning port jurisdiction: "Whatever is within the extent of a country is within the authority of its sovereign; and if any dispute arises concerning the effects within the country or passing through it, it must be decided by the judge of the place. (Vat. 446) * * * The general authority over the property of foreigners is as absolute as over the property of subjects." Chief Justice Marshall, in delivering the opinion, included the following most important pronouncement: "The jurisdiction of the Nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source would imply a diminution of its sovereignty to the same extent in that power which could impose such restriction. "All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the Nation itself. They can flow from no other legitimate source. * when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such individuals or merchants did not owe temporary and local allegi[e]nce, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, 43 Op. cit., p. 354. 447 Cranch, 114. 45 Ibid., 127. and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption." 4 2. Wildenhus Case. Argued December 7, 1886; decided January 10, 1887.* Chief Justice Waite delivered the opinion in which he said: "It is a part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or argument * * * by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require.' 1948 49 3. The Eudora. District Court, Eastern District Pennsylvania, June 22, 1901, No. 25. In certain domestic matters it was maintained that the United States had no jurisdiction over foreign vessels. "A foreign vessel is a part of the territory of the country to which she be longs, and, although she is subject to the laws of the United States in certain respects while in our ports, Congress has no power to control her domestic affairs, such as the terms on which she ships her crew, or the time or manner of the payment of their wage, which are matters that properly concern the ship and crew alone, subject to the law of her flag." 99 50 This decision, however, was not upheld by the Supreme Court. (See next paragraph.) 4. Patterson v. bark Endora. Argued May 1, 1903; decided June 1, 1903.61 The statement of the case, which involved control over the payment of wages to seamen on foreign merchant vessels within our ports, included this important sentence: "The implied consent of this Government to leave jurisdiction over the internal affairs of foreign merchant vessels in our harbors to the nations to which such vessels belong respectively may be withdrawn.” 52 The opinion of the court, delivered by Mr. Justice Brewer, leaves no room for questioning our right to make wage-payment legislation applicable to foreign vessels in our own ports. Beginning with a rather general statement, he says: * 'It is undoubtedly true that for some purposes a foreign ship is to be treated as foreign territory * *. Yet when a foreign merchant vessel comes into our ports, like a foreign citizen coming into our territory, it subjects itself to the jurisdiction of this country." 53 Continuing, the opinion becomes more specific and less subject to doubt of any kind: "The implied consent of this Government to leave jurisdiction over the internal affairs of foreign merchant vessels in our harbors to the nations to which those vessels belong may be withdrawn. Indeed, the implied consent to permit them to enter our harbors may be withdrawn, and if this implied consent may be wholly withdrawn it may be extended upon such terms and conditions as the Government sees fit to impose. And this legislation, as plainly as words can make it, imposes these conditions upon the shipment of sailors in our harbors, and declares that they are applicable to foreign as well as to domestic vessels. Congress has thus prescribed conditions which attend the entrance of foreign vessels into our ports, and those conditions the courts are not at liberty to dispense with." 55 5. The Irion. District Court, Western District, Washington, N. D., July 14, 1916. The case involved the right to apply to foreign vessels within our ports the stipulation that seamen are entitled to a certain part of their wages at ports where cargo is loaded or delivered. Congress has specifically provided that the section should apply to seamen on foreign vessels while in harbors of the 40 Op. cit., 133 and 144. 47 U. S. Reports, v. 120, p. 1 ff. 49 Federal Reporter 110, p. 430. 51 190 U. S. Repts., 169. 52 Ibid., p. 170. 53 Ibid., p. 176. 54 Ibid., p. 178. 55 Federal Reporter, vol. 237, p. 142. 66 United States and the courts of the United States shall be open to such seamen for its enforcement." In the decision it is stated: 66 Congress has the right to prescribe rules which shall govern vessels and sailors while within the jurisdiction of the United States, notwithstanding the vessels are foreign craft, and the sailors alien persons." 6. One English case is added to show a pertinent exercise of local authority in a civil suit. In Caldwell v. Van Vlissingen (1851), (9 Hare 415, 21 L. J., ch. 97) the high court of chancery granted an injunction against Dutch subjects to restrain them from using aboard their vessels within the dominion of England, without license of the plaintiffs, an invention to which the plaintiffs were exclusively entitled under the Queen's patent. The patented articles were screw propellers used on vessels trading between Holland and England, and the vice chancellor gave the case of a railway engine running from Scotland to England as analogous, and refused to consider the reciprocal inconvenience of proceedings of this sort in various countries. The case was not appealed, but the English statute was shortly afterwards modified to prevent the recurrence of such hardships." By way of summary it might be said that the consensus of opinion and the effect of judicial decision is that a soverign nation has exclusive jurisdiction over the merchant ships within its ports, even though they may sail from foreign countries. This authority is questioned by some who hold that jurisdiction is limited only to affairs which affect the peace of the port, while others claim the jurisdiction is as absolute as if the vessel were on the land itself. Occasionally, reference is made to the need for equality of treatment for all nations, and also the wisdom of refraining from exercising as complete jurisdiction as would be permitted by strict adherence to the principles of laws of nations. III. DEPORTATION OF ALIENS AND PAYMENT OF EXPENSE INVOLVED as are (A) Introductory.—The question of deportation of such seamen brought to this country when they are of a class debarred by our laws from United States citizenship, and requiring the vessel responsible for their coming to pay the expense of deportation is a weighty one whose settlement, according to established principles of international law, requires consideration of such statements as have appeared in the first part of this paper, as well as further ones concerning the sovereign right of expulsion and penalties attached to those who bring persons that must be deported. If it can be established that international law as determined by (1) authorities writing on the subject, (2) court decisions, and (3) official spokesmen, recognizes an unequivocal right on the part of any nation, to expel those whom it does not wish to receive, and if the port of any country is just as much the territory of the nation as the land itself, with the same rights of sovereign jurisdiction (as many writers have maintained), then this proposed deportation provision will find sanction in the practice of the law of nations. (B) Official statements.-The strongest statements on the subject probably come from writers on the subject of international law. There are certain excerpts from communications of our own officials, however, that are pertinent to the subject. 1. In the early days of our country's history there was stated: "The judicial power of a nation extends to every person and everything in its territory, excepting only such foreigners as enjoy the right of extraterritoriality, and who, consequently, are not looked upon as temporary subjects of the State." 59 2. Mr. Marcy quotes from another authority to support his position: "It is a sovereign right belonging to every independent power to determine whether it will or will not receive foreigners within its territorial limits as 56 Ibid., p. 144. 57 Federal Reporter, vol. 237, p. 144. 68 Charteris, p. 66. See patents, designs, and trade-marks act, 1883 (46 and 47 Vic., c. 57), sec. 43, now sec. 48, of the patents and designs act, 1907 (7 Ed. VII, c. 29). 59 1 Op. 87, Lee, 1799. See Wharton, Francis, "Digest of the International Law of the United States," 2d edition, Washington, G. P. O., 1887, Vol. II, sec. 203. ** * * residents, and, having granted such permission, it has the same right to determine whether it will or will not revoke it and send such persons out of its country. As a general principle, governments have the same right to send persons out of their territories as they have to deliver them up in pursuance of stipulations in extradition treaties." 19 60 3. Mr. Cass, while Secretary of State, wrote thus: Every independent State has the right to regulate its internal concerns in its own way, taking care to avoid giving just cause of offense to other nations. *** When our citizens enter those countries, they enter them subject to the operation of the laws, however arbitrary these may be, and [are] responsible for any violation of them." " 4. Mr. Fish, about 10 years later, expressed the following: "The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State, are too clearly within the essential attributes of sovereignty to be seriously contested. "Strangers visiting or sojourning in a foreign country voluntarily submit themselves to its laws and customs." 62 5. Mr. Blaine, during his Secretaryship, had occasion to give his view: "Every person who voluntarily brings himself within the jurisdiction of the country, whether permanently or temporarily, is subject to the operation of its laws, whether he be a citizen or a mere resident, so long as, in the case of the alien resident, no treaty stipulation or principle of international law is contravened." 6. One more quotation is given from a Secretary of State, Mr. Gresham: "This Government does not propose to controvert the principle of international law which authorizes every independent State to expel objectionable foreigners or classes of foreigners from its territory. The right of expulsion or exclusion of foreigners is one which the United States, as well as many other countries, has upon occasion exercised when deemed necessary in the interest of the Government or its citizens." "4 (C) Writings of international law experts.-1. Clement L. Bouvé has written a comprehensive volume on laws relative to the exclusion and expulsion of aliens in the United States," and the following citations from this work are illuminating, so far as exclusion alone is considered. "It is a generally accepted principle of international law that any State. being an independent member of the family of nations, may, in the exercise of its inherent powers of sovereignty, prohibit the entrance of foreigners into its territory, or prescribe the conditions under which they shall be allowed to enter, and that this may be done either with regard to foreigners as a whole or only as to certain classes of aliens. Since under international law no foreigner can claim, as of right, to enter the jurisdiction of a sovereign State other than his own, it necessarily follows that the right to exclude all foreigners is recognized under the law of nations. At the same time it is obvious that under conditions as they exist to-day no civilized nation would enter upon the indiscriminate exercise of either the right of exclusion or expulsion." " Again, on later pages, he says: (a) * * * in international law no foreigner can claim the right of entry or admission to a State." 67 (b) "The exclusion or expulsion of aliens having been made the subject of regulation by the municipal laws of the country, the international principle is to that extent superseded, and their validity can only be brought into question on the ground that they violate basic principles of the fundamental law.” *s 60 Mr. Marcy, Secretary of State, to Mr. Gadsden, minister to Mexico, No. 54, Oct. 22, 1855, MS. Inst.. Mexico, XVII. 54. See Moore, IV, pn. 71-72. 61 Mr. Cass, Secretary of State, to Mr. Wright, Dec. 10, 1858, MSS. Inst., Prussia. See Wharton, International Law Digest, v. 2, Ch. VII, sec. 203, pp. 505-506. 62 Mr. Fish, Secretary of State, to Mr. Washburne, Sept. 17, 1869, MSS. Inst., France. See Wharton, v. 2, Ch. VII, sec. 206, pp. 518-519. 63 Mr. Blaine, Secretary of State, to Mr. O'Connor, Nov. 25, 1881, MSS. Dom. Let. See Wharton, vol. 2, Ch. VII, sec. 203, p. 507. 64 Mr. Gresham, Secretary of State, to Mr. Smythe, minister to Haiti, Nov. 5, 1894. For. Rel. 1895, II, 801. See Moore, International Law Dig.. IV, p. 83. 65 Bouvé, Clement L.: A treatise on the laws governing the exclusion and expulsion of aliens in the United States. Washington, 1912. 66 Ibid., p. 3. 67 Ibid., p. 10. es Ibid., p. 128. |