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.114 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.118 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, 1 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.

110 Stanley 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.

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.

119 Hatch 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). 121Kawananako 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.1 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).

of obligations sometimes enunciated by theorists but seldom made effective or maintained by practical diplomatists.

In the first class are the complete or partial exemptions from territorial jurisdiction of certain foreign agencies of government, such as executive heads, diplomatic officers, armed forces, public vessels, consuls and sometimes of other foreign subjects, to which may be added the exemptions from complete control of certain portions of territory, such as international rivers and canals, ports and territorial waters of the ocean, and recently acquired territory.

In the second class are exceptions from the usual rule that courts apply the law of the land. Such exemptions occur in cases involving foreign persons, foreign judgments, foreign contracts, etc. Here exists the most marked difference between the AngloAmerican and Continental theories. Writers of the latter school usually consider it a duty of the state to assume jurisdiction of cases and apply foreign law according to rules of private international law. Common law writers, on the other hand, generally consider the matter entirely one of comity and policy. They deny that a state is under an international duty to apply foreign law according to any rules other than those its own jurisprudence may direct. Consequently they sometimes object to the term "private international law" but consider the rules governing "conflict of laws" as a branch of the common law. Which theory is best adapted to promote the welfare of men and nations we shall not attempt to decide, but it is certain that no sys

2See H. Bonfils, Manuel de Droit International Public. 3rd. ed., Paris, 1901, p. 3; F. DeMartens, Traité de Droit International, 3 vols., Paris, 1883, 2; 391-400: See also Annuaire de l'institut de Droit International, 1902, 1904, 1906, 1908 and compare attitude of representatives of Continental and Common Law countries in discussions of private international law.

See T. E. Holland, Elements of Jurisprudence, 11th ed., N. Y., 1910, pp. 410-419: J. Westlake, A Treatise on Private International Law, 3rd ed., London, 1890, pp. 1-7: Joseph Story, Commentaries on The Conflict of Laws, 8th ed., Boston, 1883, pp. 8-9, 24; F. Wharton, A Treatise on the Conflict of Laws, 3rd ed., 2 vols., N. Y., 1905, pp. 2-4: A. V. Dicey, A Digest of the Law of England with reference to the Conflict of Law, 2nd ed., London, 1908, pp. 3-16: F. Pollock, First Book of Jurisprudence, 2nd ed., London, 1904, p. 99: T. J. Lawrence, Principles of International Law, 4th ed., N. Y., 1910, pp. 5-6: A. S. Hershey, The Essentials of International Public Law, N. Y., 1912, pp. 4-5, Bibliography,

tem for the application of law has been universally consented to at present. Although American courts have occasionally applied rules on the subject because they deemed them established by international law, their general tendency has been to regard precedents of the common law alone. We will therefore exclude the rules of private international law from consideration. At present international law imposes no duty upon states to apply foreign law in certain cases.

In the third class are duties connected with the control of private persons and commerce. It is sometimes asserted that states are bound to acquiesce in the immigration of foreigners and the emigration of inhabitants; the naturalization of aliens and the expatriation of citizens; and the importation and exportation of goods. If the state were really under an international obligation to acquiesce in these matters, if it had no legal right to say who should enter or leave its territory, who should form its citizenship and what commercial policy should be pursued, the regime of territorial state sovereignty would be at an end. The United States has certainly not acted upon this theory in its entirety. It has passed laws prohibiting immigration not only of various classes but of whole races, and laws expelling aliens after they have arrived. In its diplomatic correspondence, instead of maintaining acquiescence in emigration as a duty under international law, it has considered it a duty of states to prohibit the emigration of certain classes. Even less has unlimited admission to citizenship been permitted by law. Large classes and whole races are permanently excluded from this privilege. Laws permitting naturalization have been framed with reference to national policy, not international duty. By admitting the right to restrict emigration, the right to prevent the loss of its citizens by

*See Hilton vs. Guyot, 159 U. S. 113 (1894), in which Justice Gray, speaking for the court, decided that international law, public and private, is part of the law of the United States and requires adherence to the principle of reciprocity in applying foreign judgments. He therefore refused to apply a French judgment, as French courts did not apply foreign judgments, but in Ritchie vs. McMullen, 159 U. S. 235, at the same time, he applied an English judgment on the same principle. Justices Fuller, Harlan, Brewer, and Jackson dissented in Hilton vs Guyot on the ground that the common law was decisive, and it applied the principle of res judicata to foreign as well as domestic judgments.

5See Bonfils, op. cit., sec. 412-414; Hershey, op. cit. p. 257, and note, also bibliography, p. 273.

See Moore's Digest, 2;427.