tures members of the armed forces of the enemy who before their capture committed such violations of the laws and customs of war as are considered to be war crimes. A belligerent may try prisoners of war, and punish them, as war criminals. 1 M'Leod. § 446. An excellent example of the position of armed Case of forces abroad is furnished by the case of M'Leod, which occurred in 1840. Alexander M'Leod, who was member of the British force sent by the Canadian Government in 1837 into the territory of the United States for the purpose of capturing the Caroline, a boat equipped for crossing into Canadian territory, and taking help to the Canadian insurgents, came in 1840 on business to the State of New York, and was there arrested and indicted for the killing of one Amos Durfee, a citizen of the United States, on the occasion of the capture of the Caroline. The British ambassador at Washington demanded the release of M'Leod, on the ground that he was, at the time of the alleged crime, a member of a British armed force sent into the territory of the United States by the Canadian Government acting in a case of necessity. M'Leod was not released, but had to stand his trial in 1840, when he was acquitted on proof of an alibi. However, in the reply of Mr. Webster, the Secretary for Foreign Affairs of the United States, to a note from the British ambassador occurs the following passage: The Government of the United States enter 1 See below, vol. ii. § 251. When, during the World War, the French tried by court-martial, and punished, German prisoners of war who had pillaged before their capture, some German writers-see Strupp in Z.I., xxv. (1915), p. 359-asserted that since armed forces abroad remain under the exclusive jurisdiction of their home State, the French had no right to punish captured German soldiers for war crimes. But this VOL. I. 2Q assertion is quite unfounded, since 2 See Wharton, i. § 21, and Moore, The Casa tains no doubt that, after the avowal of the transaction as a public transaction, authorised and undertaken by the British authorities, individuals concerned in it ought not. . . to be holden personally responsible in the ordinary tribunals for their participation in it.' § 446a. Another interesting example is the Casa Blanca incident. On September 25, 1908, six soldiers -three of them Germans-belonging to the French Foreign Legion which formed part of the French troops in Morocco, deserted at Casa Blanca, and asked for, and obtained, the protection of the local German consul, who intended to take them on board a German vessel lying in the harbour of Casa Blanca. On their way to the ship, however, they were forcibly taken by the French out of the custody of the secretary of the German consulate, and of a native soldier in the service of the consulate, who were conducting them. Considering all Germans in Morocco without exception exterritorial, and under the exclusive jurisdiction of her consul, Germany complained of this act of force, and demanded that those of the deserters who were German subjects should be given up to her by France. Germany admitted that the consul had no right to extend his protection to other than German subjects. France refused to concede this demand, maintaining that the individuals concerned had, even after their desertion, remained under the exclusive jurisdiction of their corps, which formed part of a French force occupying foreign territory. As the parties could not settle the conflict diplomatically, they agreed, on November 10, 1908, to bring it before the Hague Court of Arbitration, which gave its award1 on May 22, 1909, which was on the whole in favour of France. The Court held that there was a conflict of jurisdiction with regard to the German deserters, because 1 See Martens, N. R. G., 3rd Ser. i1. p. 19. An English translation of the award is printed in A.J., iii (1909), p. 755. as German subjects they were under the exclusive jurisdiction of the German consulate, but as deserters from the French Foreign Legion they were under the exclusive jurisdiction of the French Army of Occupation; that, under the circumstances of the case, the jurisdiction of the Army of Occupation should have the preference; that nevertheless the German consul was not to be blamed for his action, since in a country granting exterritorial jurisdiction to foreigners the question of the respective competency of the consular jurisdiction and of the jurisdiction of an Army of Occupation was very complicated and had never been settled in an express, distinct, and universally recognised manner; that, since the German deserters were found at the port under the actual protection of the German consulate, and this protection was not manifestly illegal, the actual situation should, as far as possible, have been respected by the French military authority; that therefore the French military authorities ought to have confined themselves to preventing the embarkation and escape of the deserters, and, before proceeding to their arrest and imprisonment, ought to have offered to leave them under sequestration by the German consulate until the question of the competent jurisdiction had been decided. The Court did not, however, decree the restitution by France of the three German deserters to Germany.1 1 The ambiguity of the award has justly been severely criticised. If, as the Court correctly asserts, the jurisdiction of an Army of Occupa*ion must prevail over the jurisiction of a consul over his nationals a country granting exterritorial diction, a decision of the conon mere legal grounds would to be entirely in favour of , for it is difficult to see how gfully acquired and illegally 1 protection can create any on on the part of those who are exclusively competent to exercise jurisdiction. But it is a well-known fact that courts of arbitration frequently endeavour to give an award which satisfies both parties, and the ambiguity of the award in the Casa Blanca incident is manifestly due to this cause. The award is not of such a kind as one would expect from a court of justice, although it may be an excellent specimen of an arbitral decision. See A.J., iii. (1909), pp. 698-701. Men-ofwar State Organs. Character II MEN-OF-WAR IN FOREIGN WATERS Hall, §§ 54-55-Lawrence, § 107-Phillimore, ii. §§ 344-350-Westlake, pp. 266-269-Taylor, § 261-Moore, ii. §§ 252-256-Twiss, i. § 165-Stephen, History of the Criminal Law of England (1883), ii. pp. 43-58Wheaton, § 100-Bluntschli, § 321-Stoerk in Holtzendorff, ii. pp. 434446-Perels, §§ 11, 14, 15-Heilborn, System, pp. 248-278-Rivier, i. pp. 333-335-Bonfils, Nos. 614-623—Mérignhac, ii. pp. 554-565 Calvo, iii. §§ 1550-1559-Fiore, i. Nos. 547-550-Testa, p. 86-Jordan, R.I., 2nd Ser. x. (1908), p. 343-Praag, Nos. 251-259. § 447. Men-of-war are State organs just as armed forces are, a man-of-war being in fact a part of the armed forces of a State. And respecting their character as State organs, it matters not whether men-of-war are at home, or in foreign territorial waters, or on the high seas. But it must be emphasised that men-of-war are State organs only so long as they are manned, and under the command of a responsible officer, and, further, so long as they are in the service of a State. A shipwrecked man-of-war, abandoned by her crew, is no longer a State organ; nor does a man-of-war in revolt against her State, and sailing for her own purposes, retain her character as an organ of a State. On the other hand, public vessels in the service of the police and the customs of a State; private vessels chartered by a State for the transport of troops and war materials; and vessels carrying a head of a State and his suite exclusively, are also considered to be State organs, and are, consequently, in every point treated as though they were men-of-war. Proof of § 448. The character of a man-of-war, or of any other as Men-of-vessel treated as a man-of-war, is, in the first instance, proved by its outward appearance; a vessel of this kind war. flies the war flag and the pennant of its State.1 If, nevertheless, the character of the vessel seems doubtful, her commission, duly signed by the authorities of the State which she appears to represent, supplies a complete proof of her character as a man-of-war. And it is by no means necessary to prove that the vessel is really the property of the State, the commission being sufficient evidence of her character. Vessels chartered by a State for the transport of troops, or for the purpose of carrying its head, are indeed not the property of such State, although they bear, by virtue of their commissions, the same character as men-of-war.2 for Men § 449. Whereas armed forces in time of peace have Occasions no occasion to be abroad except under some special of-war condition, or in a case of necessity, men-of-war belonging Abroad. to all maritime States possessing a navy are constantly crossing the high seas in all parts of the world, for all kinds of purposes; and occasions for men-of-war to sail through foreign territorial waters, and to enter foreign ports, necessarily arise. No special convention between the flag-State and the littoral State is necessary to enable them to do this. All the territorial waters and ports of civilised States are, as a rule, open to men-of-war as well as to merchantmen of all nations, provided they are not excluded by special international stipulations, or special Municipal Laws of the littoral States. On the other hand, it must be emphasised that, unless special international stipulations, or special treaties between the flag-State and the littoral State, provide to the contrary in regard to a particular port or to certain territorial waters, a State is, in strict law, always competent to exclude men-of-war from all or certain of its ports, 1 Attention ought to be drawn here to Convention VII. (concerning the conversion of merchant ships into warships) of the second Hague Peace Conference of 1907. Although this convention concerns the time of war only, it is indirectly of import- * Privateers used to enjoy the |