now be almost universally conceded that such a crime is to be regarded as committed within the jurisdiction of the Territorial Law. (3.) If the Ambassador chooses to prosecute such a person, that person cannot raise an exception that the act is only cognizable by the personal law of the Ambassador. It is impossible to vouch against a diplomatist a fiction invented for his protection. The fiction of Exterritoriality must give way to fact, except in the cases of the persons whom it exists to protect.* On the other hand, by inviting protection, the Ambassador waives his immunities pro tanto. (4.) Where the offence is committed within the Embassy by a person belonging to it: (a.) If the Ambassador can dismiss him, he can prosecute him here; and (b.) If he cannot dismiss, he probably cannot prosecute here, because the privilege, such as it is, is that of the sovereign, who alone can dismiss the accused. (5). If the person is a British subject, the exception does not seem to be open to him in any case of crime.t American experience has been more fruitful than English in proceedings against diplomatists. In England the Crown can always stop a prosecution by entering a nolle prosequi, which amounts not to an acquittal, but to a stay of all proceedings. In America, this cannot be done by the Supreme Government in the case of offences against State Laws, but the same end has been attained by reserving to the Supreme Court all questions relating to foreign diplomatic offices.‡ 3. Entsch. Strafgerichtskammer, p. 70. But as to this, see Macartney v. Garbutt, 24 Q.B.D. 368. U.S. Const., Art. 3. See U.S. v. Ravara, 2 Dall. (U.S.) 299. Manhardt v. Soderstrom, I Binn. (Pa.) 138. Commonwealth v. Kosloff (1816), 5 Serg. & Rawle (Pa.), p. 545 (Tilghman, C.J.). * The old rules of English Law made all crimes except piracy depend upon fealty. or allegiance, which in feudal times depended upon tenure of land, and could therefore be double. But the special provisions as to trial by jury made it impossible to punish in the ordinary courts of law offences, even treason, committed without the realm. The special Courts of the Constable and Marshal, and of the Admiral administering the Civil Law (jus Caesareum), alone had cognizance of offences by Englishmen upon the high seas or abroad; but their powers and procedure were jealously regarded and ultimately transferred by statute to the Courts of Common Law. As to matters arising within the realm neither of these Civil Law Courts had any jurisdiction, and upon the extinction of the Constable's Court, except so far as its jurisdiction is transferred by statute to Military Courts, of which it was the progenitor, the territorial theory of crime, already become familiar by reason of the large influx of foreigners into England, became general, and is now regarded as characteristic of English Law. There had never at any time been any recognition in England of the Exterritoriality, in the literal sense, of an Ambassador's dwelling-placet in England. Earlier * The penalty was forfeiture of the offender's fief. Bracton, de Exceptionibus. [We must demur to the doctrine that allegiance, in Feudal times, depended upon tenure of land. Had this been the case, the mass of the people would, in all countries, have been free from any allegiance, which, it is submitted, would reduce the doctrine ad absurdum. Allegiance depended upon birth within the territorial jurisdiction of a particular Sovereign and, therefore, could not be double. Fealty or Homage, on the other hand, being due for lands held of a superior, might be double, and the Sovereign of one country might himself hold fiefs in another, and, in the persona of the holder of such fiefs, owe fealty to the Sovereign of whom they were held, a fact which is familiarly exemplified in the medieval relations of the Kings of England and Scotland, and of England and France.-ED.] Wharton, Conflict of Laws, s. 16, goes much too far in saying that the residence of a foreign Ambassador is regarded as part of the territory of his Sovereign. Ambassadors were usually lodged within one of the King's Palaces, and were supplied with food and everything as guests, but if they misbehaved, the King was quick to arrest them or confine them to their quarters, or expel them from the country. It would have been idle for them to claim Exterritoriality as to a part of the King's own house, and they were privileged from all arrest on civil process,* or against their goods because of the rule as to the verge of the Royal Court, where no civil process could be executed save by Royal permission, while with respect to crimes within the Court a special tribunal and jurisdiction existed, which still survives upon the Statute Book.† This special privilege and special jurisdiction have nothing whatever to do with Exterritoriality. The English King himself is not liable to suit or indictment, but not because he is Extra-territorial; and the reason why seizure of person or goods on civil process in his residence without. his special leave is prohibited is to prevent scandal and disorder unbefitting his dignity; and a like privilege from arrest on civil process attaches to advocates, witnesses, and parties eundo, morando, et redeundo, from any of the Queen's courts of justice, or even from an Arbitrator's court, and there is strong reason to think, though space fails for proving here, that historically the position of an Ambassador rests upon the form of safe-conduct given him as a condition precedent to his right to enter the realm at all.§ The Act of 1708 is careful to say nothing about real property; and in subsequent Acts special provision is * See Att.-Gen. v. Dakin, 1870, L.R. 4 H.L. 338. † 33 Hen. VIII. (1541), see 1 Rev. Stat. (2nd ed.), p. 379. The Act contains no special reference to the position of Ambassadors. The old theory of crime in England made the essence of crime to consist in breach of fealty or of the King's peace; only in the case of Charles I. was any attempt made to punish a King as for crime. § Re Freston, II Q.B.D. 545. made for levying upon the owner of a house occupied by an Ambassador the land tax and the municipal assessments,† computed on the value of the house. The land remains as much subject of English taxation as ever, notwithstanding the occupancy of the privileged alien, but the remedy by distress against his goods upon the land is taken away. Where, as is possible since 1870,‡ a foreign State owns its Embassy, the remedy against the owner is taken away so far as to give privilege under the Act of 1708 from any process against person or goods to enforce imperial or local taxation. But secret trading by a Minister under cloak of his privilege has been treated as a fraud on the revenue.§ The Extradition Act of 1870|| does not include foreign Embassies as being within the "jurisdiction" of foreign States either so as to permit the extradition from England of persons committing crimes therein, or so as to concede to foreign Ambassadors any right to refuse or concede extradition according to the character of the offence alleged against any person who has sought asylum¶ therein, or to make the Embassy an asylum for English political offenders, and there is the strongest disposition on the part of English lawyers wholly to deny the existence of any Exterritoriality and to adopt the strong views of M. Laurent** on this subject. It has been usual to point out 38 Geo. III., c. 5, S. 46. Cf. Proceedings in Haiti, cutting off an Ambassador's water supply, after tender by him of the rates, on the ground that the landlord was liable and had not paid. + See Parkinson v. Potter, 16 Q.B.D. 152; Macartney v. Garbutt, 24 Q.B.D. 368. Naturalisation Act (33 & 34 Vict., c. 14. S. 2). § Att.-Gen. v. Thornton, McCleland, 600. 33 and 34 Vict., c. 52. ¶ As to asylum, v. infra. The U.S. in Calvin Pratt's case declined to recognize as ground of extradition an offence committed within the British special jurisdiction in Japan. U.S. For. Rel. (1875), pp. 817, 821. As to the American Law on Exterritorial Jurisdiction, see In re Ross, 140 U.S. 453. ** Vol. 3, C. X. or argue for an analogy* between the public ministers and the public vessels of foreign States. The latter subject was very carefully examined in England in 1876 by a judicial commission appointed to consider the reception of fugitive slaves on British warships.t The Commission included many men, all eminent in English opinion and some internationally well known. The Commissioners were not unanimous on the question of Exterritoriality. Sir Robert Phillimore, Sir Henry Maine, and Mr. Bernard were disposed to accept the doctrine, but the Commissioners more steeped than they in the Common Law, rejected the doctrine as an unjustifiable expansion of a fiction; and whether a metaphor or a fiction, the phrase Exterritoriality will not bear straining.§ The analysis of the doctrine of Exterritoriality as applied to ships of war by Sir Alexander Cockburn,|| Sir James Stephen, and Mr. Rothery seems, if not absolutely conclusive (though I believe it to be so) against the acceptance of that doctrine in England, at least fatal to any effort to argue by analogy from Ambassadors to public vessels, or vice versâ, and any doubt as to the English view on the subject was set at rest in 1878, so far as relates to crimes committed on board of or by means of foreign vessels, by the Territorial Waters Jurisdiction Act, 1878 (41 and 42 Vict., c. 73), s. 2, which provides that "An offence committed by a person whether he * Parl. Papers of 1876, C. 1516-1. † Utterly rejected by Cockburn, L.C.J., p. xli., although maintained by Calvo and Phillimore, whose merits as writers lie rather in the variety of their information than the soundness of their conclusions. E.g., Cockburn, L.C.J., Sir James Stephen, Archibald, J., Thesiger, afterwards Lord Justice, Rothery, Registrar of the Privy Council, Sir Henry Maine, Sir Henry Holland (now Lord Knutsford, and lately Secretary of State for the Colonies, then Law-Adviser to the Colonial Office), Mountague Bernard, and Sir Robert Phillimore. § Lindley, L.J., in R. v. Keyn, 1876, L.R. 2 Ex. D., p. 94. See Maine's view in his Lectures on International Law (ed. 1887), p. 87. |