In Williams v. Suffolk Insurance Co.10 the Supreme Court of the United States said:

Can there be any doubt that when the executive branch of the government which is charged with our foreign relations, shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it in the province of the court to determine, whether the executive be right or wrong. It is enough to know that, in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union.

Earlier than this, in the case of the Cherokee Nation v. Georgia 11 the same court had said: "It is a rule which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent States or Nations those powers that are recognized as such by the executive and legislative departments of the government, they being more particularly entrusted with our foreign relations."

The English doctrine as to the conclusiveness, so far as the courts are concerned, of the determination of the political departments of the government is the same as that of the United States. In the case of The Charkieh 12 Sir Robert Fillimore took a different view, but he was expressly overruled in 1894 by the Court of Appeal in the case of Mighell v. The Sultan of Johore, Lord Esher, in that case, saying: "When there is an authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that, in the courts of this country, is conclusive." 13

Recognition of Governments. The matter of the recognition of Government or heads of States as distinct from

the recognition of the States themselves will be discussed later on.14

Determination of Extent of Territorial Jurisdiction. Equally conclusive upon the courts are the determinations of the political department as to the territorial extent of the British dominion itself.

In Regina v. Keyn,15 decided in 1876, one of the questions was as to the territorial jurisdiction of Great Britain over waters within three miles of her coasts. In the course of his opinion Chief Justice Cockburn said: “That such legislation [asserting jurisdiction], whether consistent with the general law of nations or not, would be binding on the tribunals of this country-leaving the question of its consistency with international law to be determined between the governments of the respective nations can of course admit of no doubt."

In the same case Justice Brett, in a dissenting opinion-his dissent being based upon the denial of the position assumed by the majority that an affirmative act of Parliament asserting the jurisdiction and vesting in the court authority to adjudicate cases of the instant class was needed-said: “The question what is or what is not a part of the realm, is in my opinion not in general a question for a judge to decide. . . . What are the limits of the realm should in general be declared by Parliament."

So, also, the Judicial Committee of the Privy Council, the next year, in the case of Direct United States Cable Co. v. Anglo-American Telegraph Co.16 said, with reference to the political status of the Bay of Conception: "Moreover, [a circumstance] which, in a British tribunal, is conclusive, the British Legislature has by act 14 Post, chap. XX.

15 Law Reports, 2 Ex. Div. 63. This case is often cited as The Franconia.

10

1877, 2 A. C. 394.

of Parliament declared it to be a part of the British territory."

Finally, by Section 4 of the Foreign Jurisdiction Act of 1891, the British Parliament expressly declared that whenever, in any civil or criminal proceedings, a question should be raised as to the existence of British jurisdiction, the decision of the Secretary of State should be taken as final by all tribunals.

Neutral or Belligerent Status. It has been seen that the courts of States are bound by the declarations of the socalled political departments of their own governments as to the extent of territorial jurisdiction claimed respectively by these States, and as to what foreign States are to be recognized as having sovereignty over particular foreign areas. Similarly, in times of war, all courts hold themselves bound by the decisions of their respective political departments as to whether given territories are to be regarded as having a neutral or belligerent status. The existence of a state of war between foreign States or with their own State is also a matter upon which the courts hold themselves conclusively bound by the determinations of the constitutionally competent political departments of their own governments.

Exclusiveness of Territorial Jurisdiction. That, within the area which it claims as peculiarly its own, a sovereign State will not permit, except with its own consent, the exercise of legal jurisdiction by any other State, is a principle of public law so universally advanced that it is scarcely necessary to vouch authorities in its support. It will be sufficient to give the classic statement of it by Chief Justice Marshall in the case of The Exchange.17

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from 177 Cranch. 116.

an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which would impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied.

From this principle it follows that all those instances of what is termed extraterritorial jurisdiction which are commonly recognized by modern States, such as that pertaining to the persons of foreign sovereigns, to foreign ships of war in the ports or territorial waters of other States, the immunity of foreign diplomatic officials from local jurisdiction, etc., as well as those instances in which, in certain countries of the Levant and Eastern Asia, foreigners are suable only in the consular or other courts of their own countries and have applied to them only the laws of their own countries, are all to be deemed authorized by the express or implied consent of the local territorial sovereign.18

It would seem, then, that there is no necessity for the fiction, so often employed, that the public ship of a nation is to be deemed a part of the territory of the State to which it belongs, or that the residence of a diplomatic official is to be similarly viewed.19

The juristic competency of a State to exercise extraterritorial authority will be later examined. See post, chap. XXII.

"W. E. Hall stands preeminent among English and American jurists as regards the attempt to found accepted rules of International Law upon basic juristic principles. In Chapter IV of his International Law, entitled "Sovereignty in Relation to the Territory of the State," with regard to the ordinarily recognized immunities which go under the name of extraterritoriality, he says: "The relation created by these immunities is usually indicated by the metaphorical term extraterritoriality, the persons and things in enjoyment of them being regarded as detached portions of the State to which they belong, moving about on the surface of foreign territory and remaining separate from it. The term is picturesque; it brings vividly before the mind one aspect at least of the relation in which an exempted person or thing stands to a foreign State; but it may be doubted whether its picturesqueness has not enabled it to seize too strongly upon the imagination. Extraterritoriality

Correlative Complete Responsibility. It scarcely needs to be said that the correlative to the claim of exclusiveness of jurisdiction is the strict accountability to which a State may be held by other States for the equitable and reasonable manner in which this jurisdiction is exercised over their own respective nationals and their property, or, indeed, with regard to any matters in which they conceive their just interests to be involved. Stated in other words, this doctrine is that no State is conceded by other States the right to plead either a de facto or constitutional non possumus as an excuse for failure to fulfill the obligations imposed upon it by generally recognized international law. From such a plea it is has been transformed from a metaphor into a legal fact. Persons and things which are more or less exempted from local jurisdiction are said to be in law outside the State in which they are. In this form there is evidently a danger lest the significance of the conception should be exaggerated. If extraterritoriality is taken, not merely as a rough way of describing the effect of certain immunities, but as a principle of law, it becomes, or at any rate it is ready to become, an independent source of legal rule, displacing the principle of the exclusiveness of territorial sovereignty within the range of its possible operation in all cases in which practice is unsettled or contested. This course is conceivably its actual position. But the exclusiveness of territorial sovereignty is so important to international law and lies so near its root, that no doctrine which rests upon a mere fiction can be lightly assumed to have been accepted as controlling it."

After discussing the various grounds of expediency and courtesy which have led to the granting of these immunities, Hall says: "If the view that has been presented of the extent and nature of the immunities which have been hitherto discussed be correct, it is clear that the fiction of extraterritoriality is not needed to explain them, and even that its use is inconvenient. The fiction is inconvenient, because it gives a false notion of identity between immunities which are really distinct both in object and extent, and because no set of immunities fully corresponds with what is implied in the doctrine. Nothing in any case is gained by introducing the complexity of fiction when a practice can be sufficiently explained by reference to requirements of national life which have given rise to it; where the fiction fails even to correspond with usage, its adoption is indefensible."

The author of the present volume heartily concurs with these views. In connection with this subject it may be said that exactness of terminology would require the use of the expression "exterritoriality" when immunity from local jurisdiction is referred to; and that "extraterritoriality" is the proper word when reference is had to the operation of municipal law outside of the territorial limits of the State creating it. In fact, however, this preciseness of terminology has not been generally attempted by International Law writers.