the vexed questions of refugees from ship to shore, and shore to ship, when arising between nations parties to the Code, in the following

manner :

Against a public armed ship, a demand for surrender cannot be enforced.

In the case of an unarmed ship, private or public, within the jurisdiction of a nation, process of the nation can be executed on board, and therefore a deserter or criminal may be arrested, either for prosecution in the courts of the country, or for surrender to another nation, or its ships.

In the case of deserters from ship to shore, application must be made to the local authorities, under the provisions of this Title.

By the existing rule, which will, of course, still be applicable in the case of nations not parties to the Code, a demand for the surrender of a person escaping from a nation to a foreign ship within its waters, must first be made on the officer in command. If he refuse, and the ship is a public armed ship, redress must be sought from his government. If the ship be a private ship, application must be made, after such refusal, to the consul of his nation, or to the public armed ship of such nation stationed at the port; and it is only when such application does not avail, that resort to force can be had. Guide Pratique des Consulats, vol. 2, p. 171; Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 301.

Exclusion of criminals.

206. No nation is bound to furnish an asylum to criminals from foreign countries; and it is for each govern ment, or its authorized officers,' to determine the cases, and manner in which such persons shall be excluded or removed.

1 The commanding officer of a ship of war may expel a refugee, without awaiting proceedings in extradition. Ortolan, Régles Int. et Dipl. de la Mer, vol. 1, p. 299.

Every nation has an undoubted right to surrender fugitives from other States. No man has a right to say, I will force myself into your territory, and you shall protect me. Commonwealth v. Deacon, 10 Sergeant & Rawle's (Pennsylvania) Rep., 125.

Dana says, that the general tone of the judicial decisions and of political debate in the United States has been adverse to the right of a government, in the absence of treaties and statutes, to surrender a fugitive criminal. Dana's Wheaton on International Law, § 115, note [73.]

Such surrender was, however, once made in the United States, in the case of Arguelles, governor of a district in Cuba, who, having sold into slavery a number of Africans who were in his charge as an officer, escaped to New York. There was no extradition treaty between the United States and Spain; but upon proof of the facts to the Secretary of State, and a request by the Spanish authorities for the arrest and surrender of

Arguelles as an act of favor and comity, not only because of his offense, but also because his presence in Cuba was necessary to the liberation of the Africans he had sold, the Secretary of State, with the sanction of the President, ordered his arrest and surrender, as a purely executive act. The Senate (May 28th, 1864,) inquired of the President under what authority of law or treaty this was done. The response of the Secretary of State took the ground that "although there is a conflict of authorities concerning the expediency of exercising comity towards a foreign government, by surrendering at its request one of its own subject's charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals, who are offenders against the human race; and it is believed that if in any case the comity could with propriety be practised, the one which is understood to have called forth the resolution furnished a just occasion for its exercise." United States Diplomatic Correspondence, 1864, Part II., 60–74; Congressional Globe, 1864.

A resolution introduced into the House of Representatives, condemning this act, as a violation of the Constitution and in derogation of the right of asylum, was rejected by a large majority, and the subject referred to a committee; but it was followed by no further action of Congress. An indictment was found in the State courts against the marshal who made the arrest, charging the act as an offense against the statutes respecting kidnapping; but the case has not been brought to trial. The question involved affected not only the right of the United States, but the right of the President to act, in the absence of a statute; and neither question can be considered settled by this case.

Abuse of asylum.

207. One who uses his asylum for promoting hostilities against a foreign country, may be proceeded against under the law of the nation of his asylum, or may be surrendered to the nation aggrieved.

Bluntschli, (§ 398,) states the rule to be, that, in case of abuse of asylum, the nation which has granted asylum is bound, as toward a friendly nation, to withdraw its permission to the refugee to sojourn upon its territory, or to impose such restrictions as shall preclude all danger to the country of the refugee.

The right of a State to demand that rebellious subjects shall not be allowed to plot against it in the territory of another State, cannot, when stretched to its utmost limit, be extended beyond the point of requiring the foreign State to send the fugitive in safety elsewhere; and the demand can only be legally made when the State has confessed or demonstrated its inability to restrain the fugitive from carrying on plots against the country from which he has fled. Phillimore's International Law, vol. I., p. 415.

In the course of debate in the British House of Peers, March, 1853, upon the question of foreign refugees, the Prime Minister stated that the government had resolved if any event occurred which gave just ground of complaint to a foreign government against a refugee in England, to take upon themselves the prosecution of such individual, and not to throw the burden of it upon the foreign minister.

The principal occasions upon which such a course has been pursued, have been stated as follows:

In 1799, certain English subjects were prosecuted for publishing a libel upon Paul I., Emperor of Russia. They were convicted and punished by fine and imprisonment. State Trials, (Howell,) vol. XXVII., 627–630.

In 1803, Jean Peltier, a French refugee, was prosecuted for a libel on Napoleon Bonaparte, then First Consul of the French Republic. He was convicted, but the breaking out of war prevented his receiving judgment. State Trials, (Howell,) vol. XXVIII., 530-619.

Woolsey, (International Law, § 79,) says: “A nation has a right to harbor political refugees, and will do so, unless weakness or political sympathy lead it to a contrary course. But such persons may not, consistently with the obligation of friendship between States, be allowed to plot against the person of the sovereign, or against the institutions of their native country. Such acts are crimes, for the trial and punishment of which the laws of the land ought to provide, but do not require that the accused be remanded for trial to his native country." See also Wildman's International Law, p. 59; Law Lib., vol. 52, p. 42. After the attempt to assassinate the Emperor of the French on the 14th of January, 1858, the French Minister of Foreign Affairs represented that plots to assassinate the Emperor had been formed in England, and asked that England should provide for the punishment of such offenses. In accordance with the request, Lord Palmerston, being Prime Minister, on the 8th of February introduced a bill for the punishment of conspiracies formed in England to commit murder beyond Her Majesty's dominions; but the bill was rejected, and the ministry immediately resigned. The bill was opposed by some from an unwillingness to interfere in any way with the right of asylum; but the controlling reason evidently was a feeling that the French government had used too dictatorial a tone in demanding the passage of such a law. Annual Register, 1858, pp. 5, 33, 202; Annuaire des deux Mondes, 1857-8, pp. 32, 110, 420; cited in Lawrence's Wheaton, p. 246, note.

The same application was made to Sardinia, and a law was passed there, making it a special offense to conspire against the lives of sovereigns, although the punishment originally proposed in the bill as introduced by the ministers, was mitigated by the Chambers. M. Cavour sustained the measure, both on political grounds and because he deemed it important that Sardinia, under the circumstances in which she was placed, should not act in opposition to the views of France. Annuaire de deux Mondes, 1857-8, p. 216.

Return.

208. Foreign convicts or accused persons, paupers, and persons suffering from mental alienation or from other maladies which give them the right to public relief, who enter a nation, may be sent back by it to the nation of which they are members, at any time while the legal liability or the state of dependence continues, and before they have acquired the national character of the nation into which they have entered.

The declaration between France and Bremen, Oct. 20, 1866, (9 De Clercq, 620,) which contains such a provision as to insane, &c., requires each nation to reimburse the expenses of the return of such persons, as well as the expenses occasioned by the sojourn and treatment of its own members in the asylums of the other.

The treaty between France and the Swiss Confederation, June 30, 1864, (9 De Clercq, 91,) provides that the members of one nation established in the other, who shall be sent back by legal sentence, or according to the laws or regulations of police respecting morals or mendicity, shall be received at all times with their families in the country of their origin, &c. By the treaty between the United States and the Swiss Confederation, Nov. 25, 1850, (11 U. S. Stat. at L., 587, Art. III.,) each nation is bound to receive back its members, with their wives and legitimate issue, who have preserved their rights according to its laws, in case they desire to return, or are sent back by judicial decision or act of police, according to the laws regulating morals and mendicity.

Obtrusion of convicts, paupers, &c.

209. No nation has a right to obtrude persons, such as are mentioned in the last article, upon another nation, or aid or encourage such to emigrate to another nation.

Persons entering a nation contrary to this article, may not only be sent back by it to the nation offending, at the expense of the latter, but the nation aggrieved is entitled to redress for the unfriendly act.

This article is suggested by a letter from Dr. Francis Lieber, (dated September 4, 1869,) to the Secretary of State of the United States, in reference to the obtrusion of Convicts. His conclusions are thus stated: "In my opinion, we stand in need of three things:"

First, the foul character of the transaction must be openly acknowìedged and plainly laid down in the law of nations, which, doubtless, has not been done long ago, because the offense has never before, so far as I know, presented itself so strikingly as in our times of emigration, which

resemble, though peaceful, the period of migration of nations, which was warlike."

We ought to stipulate by treaties (the reverse of extradition treaties) with the other governments of our family of nations, that every attempted importation of convicts shall be considered as a grave offense against the law of nations, and a most "unfriendly act," calling for serious remedies; and the writers on the law of nations ought soon to lay down the fair and simple principle in their works. This is one of the ways in which the law of nations advances, and has so nobly advanced in the last hundred years. I have never failed to touch on this principle in my lectures on this the greatest branch of law."

Secondly, we stand in need of a law of the United States by which it is made penal to introduce convicts into our territory, both for the captain commanding the importing vessel, and by a high fine imposed on the owners of the same; and by which law provision is made that the imported convicts be exported again to the government whence they came, at the expense of said government. A bill of this sort was introduced in February, 1867, by the late H. J. Raymond, then one of our New York representatives, induced to do so by Mr. Frederic Kapp, a foreign-born citizen himself, and one of the most active New York Commissioners of Emigration. The bill, however, was brought in too late, and only passed the House of Representatives."

“Thirdly, it will be advisable that such a law once having been passed, but the treaties which have been spoken of not yet having been concluded, the United States proclaim openly and declare to every government in amity with the United States, that henceforth our government shall consider the attempted obtrusion of convicts a highly penal act, and if governments have anything to do with it, an unfriendly act in the sense of the law of nations which requires satisfaction."