extraterritorial crime,104 written by John Bassett Moore in connection with the Cutting case, in which Mexico attempted to assert jurisdiction over an American citizen for acts committed against a Mexican citizen in the United States, only one instance is mentioned in which, aside from treaty agreements, jurisdiction is asserted over foreigners for acts in foreign territory. This case occurs in a statute of 1856105 which authorizes consular officers and secretaries of legation to administer oaths and perform notarial acts, which shall be valid in the United States. The act also provides that persons committing perjury in such oaths shall be liable to criminal punishment as if the act were committed in the United States, and may be indicted in any district where arrested. This statute was justified by Attorney General Williams10 on the ground that the domicile of the consul or diplomatic agent where the act was committed is to be regarded as a portion of United States territory. Moore thinks a more satisfactory justification can be found in the implied consent given by the foreign government, to submit its citizen to United States law, when he does these acts before an officer recognized by international law and by the foreign state's own law as competent to perform such functions.107

To this example may be added that already mentioned of the jurisdiction exercised by consular courts over seamen of foreign nationality serving on American vessels in foreign ports. The consular regulations very specifically extend this jurisdiction, and in the case of In re Ross108 its exercise was upheld by the United States supreme court in the case of a British subject, serving on an American vessel and found guilty of murder by the consular court for an act done on the vessel while in the harbor of Yokahama. The usual principle of jurisdiction over acts done on national vessels coupled with the extraterritorial jurisdiction over such vessels, granted to consuls by treaty in this case, furnishes sufficient justification for this exercise of jurisdiction over aliens for acts committed abroad.

Not so easily justified is the jurisdiction given by statute over every person committing assaults with a dangerous weapon on vessels wholly or partly owned by United States citizens, on the "high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state”. Under this statute jurisdiction was upheld of a crime committed on an American vessel in the Detroit River within the territorial limits of Canada, thus limiting the term “particular state" to states of the union. 109

In general, however, the law of the United States gives adequate recognition to the duty of abstaining from the exercise of jurisdiction over extraterritorial crime by aliens.

(d) United States courts have in general refused to give an extraterritorial effect to laws, even when no limitation was expressed in terms. Thus the supreme court refused to apply the Sherman anti-trust law to prevent a monopoly in Costa Rica. Justice Holmes speaking for the court, said, “All legislation is prima facie territorial, words having universal scope, such as every contract in restraint of trade,

will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator may subsequently be able to catch."'110

In 1908 Judge Advocate General Davis expressed an opinion that declarations of war were laws of extraterritorial effect.111 Consequently the president could call out the militia for service in foreign countries, under the constitutional and statutory authority to call them out “to execute the laws.” A statute of 1908112 based on this opinion recognized such extraterritorial laws, but the validity of this provision was denied in an opinion of the attorney general in 1912.113

114

Though this view applies to ordinary laws, there are undoubtedly laws of extraterritorial effect. Such, for instance, are the articles of war, the articles for the government of the navy, and official instructions to army, navy, consular and diplomatic officers. These are laws of non-territorial character, applying to particular persons wherever they may happen to be. Such laws, however, have been applied only to citizens of the United States, with the minor exceptions mentioned in the last section, and consequently are not inconsistent with the obligation to abstain from extending laws, or assuming jurisdiction over aliens abroad.

(4) The courts have affirmed on numerous occasions that they can not assume jurisdiction over suits against foreign states, or sovereigns, or their official representatives, such as ministers and ambassadors.11 The commonwealths of the union have also been considered sovereign in this respect, and no suits against them entertained unless jurisdiction has been specifically granted by the constitution.115 The government of the United States is itself in this class and can not be sued unless specific provision is found in statute. 116

The courts have, however, held that a nominal suit to discover facts may be within their jurisdiction.117 They may also assume jurisdiction of suits brought by sovereigns. As in such suits the sovereign has voluntarily submitted to their jurisdiction, setoffs may be allowed against him to the amount of his claim, but no more. The whole proceeding can never result in an actual judgment against a sovereign.

114 Underhill vs. Hernandez, 168 U. S. 250; Hassard vs. United States of Mexico, 173 N. Y. 645, 61 N. Y. S. 939; Res Publica vs. De Longchamps, i Dall. 111, 116, (Pa.); Hatch vs. Baez, 7 Hun. 596, (N. Y. 1876); Schooner Exchange vs. McFaddon, 7 Cranch 137.

115 People vs. Dennison, 84 N. Y. 272; Beers vs. Arkansas, 201 How. 527. The immunity of states from jurisdiction in federal courts in cases covered by the constitution was denied in Chisholm vs. Ga., 2 Dall. 419, (1793), as a result of which the immunity was specifically granted from suits by subjects of another state or a foreign state, in the eleventh amendment.

110Stanley vs. Schwalby, 162 U. S. 255; Kawananako vs. Polyblank, 205 U..S. 349, 353.

117 Manning vs. Nicaragua, 14 How. Prac. 517, (N. Y. 1857).

118 People vs. Dennison, 84 N. Y. 272; King of Spain vs. Oliver, Fed. Cas. 7813; U. S. vs. Eckford, 6 Wall. 490; The Siren 7 Wall. 152. See also Von Hellfeld vs. Russian Govt., a German Case, Am. J. Int. Law, 1911, 5; 490.

118

In a number of these cases the courts have specifically invoked the principle that courts apply international law, and have found the non-liability of sovereigns to suit among its rules.119 In other cases, the fact that jurisdiction implies power to enforce, a condition impossible as against sovereigns, was considered sufficient to warrant a refusal of judgment.120 In cases where the plaintiff sought relief for infractions of right by his own sovereign, the principle that the power which may alter the law can never be bound by it was held to render such a jurisdiction out of the question. Thus in Kawananako vs. Polyblank,121 Justice Holmes, speaking for the court, said, “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.''

The duties of abstention are in the main of a political nature, and beyond the power of municipal law to control. There have, however, been treaties and statutes defining methods of acquiring territory, the limits of the use of force against foreign countries, and the extent of the national jurisdiction. The courts also, although generally holding such questions political, and following the political department of government in any determination it may give regarding the international duties of abstention, have laid down rules, especially on the question of jurisdiction. As in laying down these principles upon which they and other public officers will act, they find the rules in the law of nations, and apply them according to the principle that courts of the United States apply international law in appropriate cases, judgemade law furnishes an effective municipal sanction to the fulfillment of the state's duties of abstention.

119Hatch vs. Baez, 7 Hun. 596, (N. Y. 1876); Res Publica vs. De Longchamps, i Dall. III, 116.

120 American Banana Co. vs. United Fruit Co., 213 U. S. 347, (1909). 121 Kawananako vs. Polyblank, 205 U. S. 349, 353.

CHAPTER III. OBLIGATIONS OF ACQUIESCENCE

INTRODUCTORY

As a state is in general bound to abstain from the exercise of sovereignty outside of its territory, so in general it may resent any obstructions to the free exercise of its sovereign rights within its territory. As has been noted there are exceptions to the general rule of abstention from the exercise of extraterritorial sovereignty. In like manner there are exceptions to the rule of complete internal authority. International law specifies cases in which sovereign rights may not be exercised even within the territory, and thereby imposes a duty to acquiesce in these exemptions. There is, however, great difference of opinion as to what these exemptions are.

It seems that in common law countries the principle of absolute territorial sovereignty is adhered to in theory with great emphasis, but in practice numerous concessions are made. In Roman law countries, on the other hand, many limitations of strict territorial sovereignty are recognized as law, but in practice few more concessions are allowed than under the common law. It is possible that the difference in theory can be traced to the territorial isolation of England in the days when common law originated, as distinguished from the situation of continental European states, where the effect of contiguity and a common descent from the Roman Empire was enhanced by the medieval conception, still lingering in the Roman Law, of a world state, to which all territorial states are subject. However, for our purposes the origin of the difference in theory is unimportant. We do not care whether the exemptions from territorial sovereignty actually practiced were originally justified by a theory of comity or of legal obligation. It remains that many of them are now so habitually observed in practice as to be distinctly obligations of international law. Others are observed with varying frequency, so should be classed as obligations of comity and good will rather than law. A third class of such concessions consists

1See Chief Justice Marshall in The Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812).