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created within the jurisdiction, unless claimed by a member of the nation to which the property belongs; and,
3. To cut off such a lien held by the former nation or its members;
Subject to the power of the nation in the last two cases to take possession of the property, for the benefit of the foreign nation, on indemnifying the creditor.
See Article 50.
639. A consul has power to appear before any court or tribunal, in case of necessity, on behalf of any member of his nation who may be absent, incapable, or not well represented.
Treaty between the United States and New Granada, May 4, 1850, Art. III.
Special authority from the parties in interest is not necessary. Blunstchli, Droit International Codifié, § 256 ; 1 Kent's Commentaries, 43.
Judicial power of consuls.
640. The consuls of any nation have jurisdiction to determine controversies of every nature' arising either at sea or in port, between the officers and crews, or any of them, of ships' belonging to the nation of the consul, without the interference of the local authorities, unless the conduct of the parties disturbs the peace;' but without prejudice to the right of the parties to resort, on their return, to the judicial authority of their own nation.
By the Act of Congress of the United States, (March 5, 1855, “ to regu. late the carriage of passengers on steamships and other vessels,'') all disputes and differences of any nature between the captains and their officers on the one hand, and the passengers of their ships on the other, shall be brought to and decided by the circuit or district courts in the United States, to the exclusion of all other courts or authorities ; and this provision is made a part of the treaty between the United States and Italy, Feb. 8, 1868, Art. XII., 15 U. S. Stat. at L., (Tr.,) 185.
In the case of the Golubchick, 1 W. Robinson Rep., 148, 153, it was held that the Court of Admiralty has a right to int. rfere in suits for wages prosecuted by foreign seamen against foreign vessels.
Consent of the foreign minister or consul is not essential to found the jurisdiction of the court in such a case. It is necessary, however, that notice of intended proceedings should be given in the first instance to the representative of the government to which the vessel proceeded against belongs.
In La Blache o. Rangel, Law Rep., 2 P. C. App., 38, Lord ROMILLY
held, that if a foreign consul, by protest, objects to the prosecution of a suit, the Court of Admiralty will determine whether it is proper that the suit should proceed or be stayed. Such protest does not ipso facto operate as a bar to the prosecution of the suit, as the foreign consul has not the power to put a veto on the exercise of jurisdiction by the Court of Admiralty.
The consul may thus intervene even against the claim of a member of the nation; it is the nationality of the vessel, and not the nationality of the individual seaman suing for wages, that determines the course of procedure.
1 Convention between the United States and Italy, Feb. 8, 1868, Art. XI., 15 U. $. Stat. at L., 609. ? Perhaps this should be expressly restricted to private ships.
Some of the French treaties qualify this by the additional exception of cases,“ where a member or inhabitant of the country or one not at. tached to the vessel is involved." 4 Treaty between the United States and
Denmark, July 11, 1861, Art. 1., 13 0. 8. Stat. at L., 605.
Venezuela, August 27, 1860, “ XXVI., 12 Id., 1143. Many other treaties contain substantially similar provisions.
JUDICIAL POWER IN CRIMINAL CASES.
ARTICLE 641. Criminal jurisdiction of a nation over its own
645. Torts against immigrants by carriers.
Criminal jurisdiction of a nation over its own members.
641. The members of a nation are subject to criminal prosecution in its own tribunals, and in no others, for an infraction of its criminal law committed within its esclusive jurisdiction, except as provided by this Chapter.
For such infractions committed within its concurrent jurisdiction, they are thus subject until tried for the same acts' and convicted or acquitted in a competent tribunal of the nation where the act was committed.
Although the act committed within the concurrent jurisdiction may constitute a different crime by the law of each nation, there seems to be no reason for allowing a double punishment.
Criminal jurisdiction of a nation over foreigners.
642. The administration of criminal justice by a nation, through its tribunals, extends to foreigners actually within its territorial limits, who have committed an infraction of its criminal law in whole or in part,' either,
1. Within its territorial limits; or,
2. On board the public vessels of the nation in any place whatever; or,
3. On board the private vessels of the nation on the high seas ; or,
4. On board the private vessels of the nation, within the territorial jurisdiction of another nation, if the offender has not been already tried for the act in question and acquitted, or convicted in a competent tribunal of the nation where the offense was committed.
1 One whose act in one country causes death in another, may be tried in either. Opinion of Sir J. MARIOTT in Cases and Opinions in Constitutional Law, by Forsyth, p. 217.
In State o. Grady, 34 Connecticut Rep., 118, the rule laid down was, thạt no State can punish criminally an act which was wholly committed without its territorial jurisdiction, but if any part of the criminal act be committed within the jurisdiction, the offender, whether he was at the time within the jurisdiction or not, may be punished, if jurisdiction can be obtained of his person.
Crimes committed on the high seas, whether on board public or private ships, are considered as committed in the territory of the nation to which the ship belongs, whether the accused be of the nationality of the ship or a foreigner, and whether the crime were committed against a fellow countryman or between foreigners. Riquelme, Derecho Internacional, tom. I., pp. 243, 245, as quoted and approved by Attorney-General CUSHING, 8 Opinions of U. 8. Attorn.-Gen., 73, and Cases and Opin. in. Constitutional Law, by Forsyth, p. 412.
It is there added, in explanation of the rule that if the ship, ou burd of which the crime had been committed, arrives at a port, the jurisdictional right of the nation to which the ship belongs over the accused does not on that account cease. So that if the accused were a foreign subject of the nation to which the port belongs, at which the ship stops, even in that case it is the right of the captain to detain him on board, that he may be judged by the tribunals of the ship's country. And if this person should get on shore, and should institute before the tribunals of his country proceedings against the captain, the local authority will be incompetent to judge the foreign captain, because the fact in question occurred in a foreign country,—that is, on board a foreign vessel on the high seas, –and because, by embarking on that ship, the party is presumed to have submitted himself to the laws of the foreign territory of which the ship constitutes a part.
Compare 18 and 19 Vict., ch. 91, S 21; The Queen o. Lopez, 27 Lau Journ., Mag. Cases, 48; Cases and Opinions in Constitutional Law by For. syth, p. 235 ; and United States Crimes Act of 1825, 4 U.S. Stat. at L., 115.
Riquelme, cited above, lays down the rule that crimes committed on board a private vessel within the territorial jurisdiction of a nation are cognizable by the courts of that nation, unless the offense affects only the interior discipline of the ship without disturbing or compromising the tranquillity of the port and without affecting a citizen or domiciled resident of the country, and the local authorities must not interfere except at
which the vessel belongs.
The conflict of authorities in reference to this rule will be found reviewed in Bishop on Criminal Law, SS 595–600.
643. The criminal jurisdiction of a nation extends to foreigners :
1. Who commit theft beyond its limits, and bring, or are found with, the property stolen, within its limits; or,
2. Who, being beyond its limits, abduct or kidnap, by force or fraud, any person, contrary to the laws of the place where such act is committed, and send or convey such person within the limits of the nation, and are afterwards found therein; or,
3. Who, being beyond its limits, cause, or aid, advise or encourage, another person to commit any act, or be guilty of any neglect within the same, which is a criminal act or neglect according to the laws of the nation, and who are afterwards found within its limits.
Penal Code, reported for New York, & 15.
644. The criminal jurisdiction of a nation extends also to foreigners found within its jurisdiction, who have committed at any place beyond its territorial limits either as principals or accessories any of the follow
1. A crime against its national safety; or,
2. Counterfeiting or forging its national seal, national papers, national money having currency within its limits, or bills of any bank authorized by its laws.
These provisions are taken from the Law of June 27, 1866, amending Articles 5, 6 and 7 of the French Criminal Code, vol. 9, p. 557.
Torts against immigrants by carriers.
645. Carriers, of whatever nationality, who bring the aggrieved person within the territorial limits of a nation, are punishable through its tribunals for any wrong committed by them against an immigrant, which, if committed within its exclusive jurisdiction, would be an infraction of its criminal law..
According to the opinions of Sir John DODSON, Sir JOHN ROMILLY and Sir A. E. COCKBURN, (Forsyth's Cases & Opinions in Constitutional Law, p. 228,) the courts of Great Britain and of her colonies now have no such jurisdiction in case of injuries committed on the high seas under a foreign flag. This article would obviate such a failure of justice.
Conspiracies against foreign nation.
646. Conspiracies formed within the jurisdiction of one nation against the government of a friendly nation and carried into effect by overt acts, are punishable by either nation within whose jurisdiction the offender is found.
See Regina o. Benard, 1 Foster & Finlason's Rep., 240; Cases & Opinions in Constitutional Law, by Forsyth, p. 236.
Limit of punishment of foreigners.
647. No greater punishment can be inflicted by any nation on a foreigner than such as is allowed by the law of the place to be inflicted on a member of the nation in a like case.
Punishment on foreign private ships. 648. No punishment can be inflicted on board of