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Droit de

Foreigners cluded on special

may be ex

general or

grounds.

shores. This right, which is called in the books the renvoi, was exercised by England in 1792, under an act of parliament called the alien act; and a similar act was passed by our own congress during the administration of John Adams. The constitutionality of such a statute was at the time questioned; but there can be little doubt that as an exercise of the war power or as a means of suppressing insurrection, it may be sustained. The constitutionality of the Chinese exclusion act of 1880, may be defended on the ground of the general right of the Federal government to regulate commerce and emigration. It is proper, however, that the ground of such non-reception or expulsion should be notified to the nation whose citizens are thus repelled.2

Duties per

domicil.

§ 180. A domiciled resident, even though not naturalized, has duties laid on him greater than those imposed on transient visitors. He becomes liable to local taining to taxation, and he is so far steeped in the jurisprudence of the country of his domicil that by it his family relations are determined, and his personal estate is distributed after his death.3 A modified grade of domicil, as will be hereafter seen, has been held in England to attach to persons who

1 Lorimer, Law of Nations, i. 344. 2 "It is a received maxim of international law, that the government of a state may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to remain in it, or may require and compel their departure from it." Phil. Int. Law, i. 407. And see supra, § 146.

According to Martens, the sovereign has a right to forbid foreigners to enter his dominions, without express permission first obtained, even if such entry be not prejudicial to the state; but no European power now refuses in time of peace to grant permission; nor is it even necessary for such subject to ask permission. Martens's Law of Nations, Bk. 3, ch. 3, § 2.

See as to Chinese emigration, infra, §§ 264, 435; Whart. Con. of Laws, 2d ed., Introduction; and on the general topic Holtzendorff, ut sup., citing Nicot, Etude historique sur le naturalisation, 1868; Westlake, De la naturalisation et de l'expatriation, 1868; Munde, Bancroft Naturalization, 1868; Marlitz, Recht der Staatsgehörigkeit, in Hirth's Annalen, 1875; Desfontaines, De l'Emigration, 1880; De Folleville, Traité de la naturalisation, 1880. As to quarantine, see Sir S. Baker, International Rules of Quarantine, 1879. As to police exclusions under the Federal constitution, see infra, §§ 425, 486, 565.

3 See as to discussion whether domicil or nationality, impresses these characteristics, Whart. Con. of Laws, 2d ed., §§ 32 et seq.; infra, §§ 254 et seq.

прив

sojourn in a foreign country for the purposes of trade, and who, when such country becomes a belligerent, have been viewed as impressed with its nationality.1

Slave trade
no longer
allowed.

§ 181. It was held by Lord Stowell, in 1817,2 and subsequently by the supreme court of the United States, that the slave trade is not piracy by the law of nations, nor, in itself, illegal. At that time slavery was recognized by law in the United States and in Russia, as well as in minor states, and, though the slave trade was piracy by statute law in the United States and in England, it had not been declared illegal by France, and it was tacitly sanctioned by Brazil. Since then, however, the conditions have changed. In 1818, a year after Lord Stowell's decision, the slave trade was made illegal in France, and there is no portion of the civilized world in which it is now sanctioned." This, taken in connection with the abolition of slavery in the United States and in Russia, leads us to the conclusion that, by the law of nations, the slave trade is no longer legal. To steal goods on the high seas is an offence against the law of nations, and so is the exportation of stolen goods. If this is the case with the stealing of goods, why not with regard to the stealing of men? Even if, as in the case of England and the United States, such an offence be not larceny, it is indictable as abduction; and, aside from this reasoning, since by all civilized states the slave trade is now a criminal offence, we may hold that, by the consent of all nations, it is now an offence internationally. If this be the case with the forcible abduction and transportation of persons of African descent, it is also the case with regard to the capturing and reduction into slavery of persons of other races. This, however, does not preclude the temporary detention and incarceration of

1 Infra, § 219; see Wildman, ii. 40;
Hartmann, § 85. As to domicil gener-
ally, see infra, §§ 254 et seq.

2 The Louis, 2 Dod. Ad. 240.
3 The Antelope, 10 Wheat. 66.
Infra, §§ 280–452.

5 In December, 1841, Austria, Prus

264

sia, and Russia, states which had previously taken no action in this relation, entered into a convention making the slave trade piracy.

6 See, to this effect, Heffter, § 32; Phillimore, op. cit., 406 et seq.

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prisoners of war, provided they are treated in conformity with the conditions of military law.1

Nor slavery

§ 182. It is also settled that slaves, on reaching a nonslaveholding state, will be regarded as free, and will be released from imprisonment and discharged by nouby the proper authorities on the making of due slaveholdapplication.2

1 R. v. Serva, 1 Den. C. C. 104, does not necessarily conflict with the position in the text. In that case a Brazilian slaver, the Felicidada, was captured and taken possession of by officers and seamen of a British cruiser. The crew of the Felicidada rose on and killed the British officer and men having charge of the vessel. Subsequently the Felicidada was recaptured by a British vessel and the crew brought to England, where they were tried for murder. It was held by a majority of the judges that the English courts had no jurisdiction of offences committed on the Felicidada, and this can only be sustained on the ground that the slave trade is not piracy by the law of nations. But this was before the abolition of slavery in the United States and Russia, and before the stringent British statute of 1845. Brazil, also, has now by statute provided that every child born of slave parents after September 28, 1871, shall be free, and Spain has pledged itself to abolish slavery in Cuba. Phill., op. cit., 436. There is, therefore, no longer a civilized state by which slavery is avowedly tolerated.

In June, 1873, Sir Bartle Frere conIcluded with the sultan of Zanzibar a treaty by which the latter prohibited slavery in his territory, and Russia, in the same year, secured similar engagements from the emir of Bokhara and the khan of Khiva.

As to right of search of slaves, see infra, §§ 194 et seq.

ing states.

By the constitution of the United States, as originally adopted, power was given to congress, after the expiration of the year 1808, to prohibit the importation of slaves. By the act of congress of March 2, 1807, the importation of slaves after Jan. 1, 1808, was made a criminal offence, subject to severe penalties, which were increased, and the prohibition extended by the acts of April 20, 1818, and May 15, 1820.

The position taken by Sir W. Scott, in the Amedie, 1 Acton, P. C. 240, is that English tribunals will hold the slave trade illegal when prohibited by the municipal laws of the country to which the parties belonged, but not otherwise. And in the Diana, 1 Dods. 95, where a Swedish vessel, carrying slaves from Africa to the West Indies, Sweden not having then prohibited the slave trade, was captured by a British cruiser, she was restored to the owner on the above ground. In The Louis, 2 Dods. 210, as above stated, it was further decided that the right of visitation and search, on the African seas, did not exist in time of peace, unless as between nations authorizing by treaty such right. See Buron v. Denman, 2 Exch. 167; rev. 8 C. B., N. S., 861; Madrose v. Willes, 3 B. &. Ald. 353.

2 The Negro Case, 20 How. St. Tr. 82, and other cases cited; Phill., op. cit., 334. "The state of slavery," said Judge Story, long before the late civil war, "will not be recognized in any country whose institutions and polity

Open sea free to all nations.

IX. RIGHT TO SEA AND RIVER.

§ 185. It is now settled that the open sea is free to all nations; but that this freedom is to nations as such, and not to individuals stripping themselves of their nationality. On the one side, all persons and property sailing under a particular flag ought, as we shall presently see, to be as free from molestation as if they were on the soil of the state which the flag represents. On the other side, this privilege is not extended to individuals not authorized to carry particular national flags. A ship traversing the seas on its own mission of good or evil may be spoken, and, if it does not bear the flag of any sovereign acknowledged as such, may be seized and brought to a prize court to determine the legality of its cruise. So far as concerns the rules of the sea, many points have been settled by treaty; others by the usage of seafaring nations. It is properly suggested by Holtzendorff, also, that, in respect to sub-marine telegraphs, rules should be adopted by treaty; and that by treaty, also, limitations should be placed on the excessive and wanton destruction of young fish and seal.'-By the treaty of Constantinople, in 1809, between Russia, England, and the Porte, the strait of the Dardanelles was constituted a mare clausum under the control of the Porte. This rule was ratified by the five great European powers in the treaty of the Dardanelles, July 10, 1841, and in 1878 was referred to as binding in the treaty of Berlin. How far the stretches of sea that are between the capes on the Atlantic coast are part of the territorial waters of the United States will be hereafter discussed.2 Whether a title to exclusive use of fisheries or of navigation on the open sea may be inferred from a tacit convention with

prohibit slavery." Story, Conf. of Laws, p. 97. As to abolition of slavery, see supra, § 20; infra, §§ 584 et seq.

1 Holtzen., ut supra, 1220, citing Ortolan, Règles internat., 2d ed., 1853; Bischoff, Grundriss eines positiven internationalen Seerechts, 1868; De Burgh, Elements of Maritime Intern. Law, 1868; Plocque, De la mer, 1870;

Perels, Das internat. öffent. Seerecht, 1882, § 4.

The sources of maritime law have been already noticed, supra, §§ 124 et seq., and are discussed in detail by Perels in the work just noticed-a work of peculiar merit. 2 Infra, § 192.

Belt of sea

within

cannon

shot held to

be terri

torial.

other nations has been much disputed. It is affirmed by Vattel,' but denied by Wheaton. Certainly one nation may by treaty with another nation preclude itself from fishing on or navigating certain portions of the high seas. But such a treaty cannot be inferred from mere non-user of the right; and a convention, to be binding, should be in express terms and deliberately sanctioned. The exclusive dominion by Denmark over the sound may be now regarded as abandoned.3 § 186. For some time after the introduction of cannon in marine warfare a belt of three miles, being the supposed range of a cannon-ball, was held to belong, in a qualified sense, to the territory of the adjacent state. It has been generally held that the waters within this belt are considered part of the territorial waters of the state, so far as to give the state jurisdiction of offences committed against its own subjects or property within such range, or of offences which disturb the peace of such territorial waters. Whether the English and American courts. have common law jurisdiction of these waters has been discussed in another work; and how far the English statute attempting to settle the doubt is to be respected extra-territorially, is also there considered. It is sufficient here to say that if the rule amounts to anything, it amounts to the assertion that every sovereign state has a right to protect itself from any offensive operations which may be undertaken from a base sufficiently near its shore to enable its shore to be molested. This is reasonable; and the effect of the rule would be to extend the belt over which police or punitive jurisdiction could be exercised for the purposes of self-defence, or revenue protection, from three to nine miles, the present extreme range of cannon-balls. But this would not authorize the interference with ships of other nations peaceably passing through such belt. All that the extension of the belt to nine miles would, in this view, effect, would be the vesting in each state of police jurisdiction over such a portion of the sea washing its coast as could be made the basis of operations against its

1 Droit des Gens, t. i. 1. i. c. xxiii. 2 Int. Law, i. p. 228.

See Phill., op. cit., i. 256.

4 Whart. Con. of Law, 2d ed., § 818.

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