public,12 an action for damages for seizing and converting to its own use goods of the plaintiff, a lower court of New York held that the unrecognized Soviet Republic could be sued even though it could not sue or have any of the other immunities of a sovereign State. In other words, the court conceded that, though unrecognized, the Soviet Government had a de facto existence. Judge Rich said:

"It is my opinion that the defendant is not entitled to immunity from suit, it is a foreign corporation aggregate, and, as such, for the time being, because it is representing the people of Russia, it is legal entity, for whose acts the nation is responsible. Like a foreign corporation which has failed to comply with the requirements of the general corporation law and the tax law [of New York] it cannot sue in our courts, but may be sued."

However, upon appeal, the Court of Appeals, 13 reversing the lower court, held that the unrecognized Soviet Government could not be sued in an American court. This it did, not upon the proper ground that, because unrecognized by the American Government, there existed no legal entity to be sued, but upon the ground that, being admittedly the Government which, in fact, was effectively exercising the supreme political power in Russia, it was a foreign sovereign entity, which, in conformity with the general principles of international comity might not have the legal quality of its acts questioned or itself subjected, without its consent, to legal process. The Court said:

"The Russian Federated Soviet Republic is the existing de facto Government of Russia. This is admitted by the plaintiff.. .. The plaintiff owned a quantity of furs. They were stored in Russia, and they were confiscated by the Russian Government. Treating this act as a con

195 N. Y. Supp. 472 (1922). "234 N. Y. 372.

version, the present action is brought. The litigation is not, therefore, with regard to title to property situated within the jurisdiction of our courts, where the result depends upon the effect to be given to the action of some foreign Government. Under such circumstances it might be that the theory of the comity of nations would have a place.14 A different case is presented to us. The Government itself is sued for an exercise of sovereignty within its own territories on the theory that such an act, if committed by an individual here, would be a tort under our system of municipal law. It is said that, because of nonrecognition by the United States, such an action may be maintained. There is no relation between the premises and the conclusion. The result we reach depends upon more basic considerations than recognition or non-recognition by the United States. Whether or not a Government exists, clothed with the power to enforce its authority within its own territory, obeyed by the people over whom it rules, capable of performing its duties and fulfilling the obligations of an independent Power, able to enforce its claim by military force, is a fact, not a theory. For its recognition does not create the State, although it may be desirable. . . . Recognition may become important where the national existence of a Government created by a rebellion or otherwise becomes a political question affecting our neutrality laws, the recognition of the decrees of prize courts, and similar questions. But, except in such instances, the fact of the existence of such a government whenever it becomes material may probably be proved in other ways 15. Here, however, we We have an exist

need no proof. The fact is conceded.

"Citing The Annette, L. R., 1919, Prob. Div. 105; The Nueva Anna, 6 Wh. 193; Oetjen v. Central Leather Co., 246 U. S. 297; Luther v. Sagor (1921), 1 K. B. 456 S. C. (1921), 3 K. B. 352.

Citing Yrissarri v. Clement, 3 Bing. 432; The Charkieh, L. R. 4 A. & E. 59. But see (the court says) Mighell v. Sultan of Johore (1894), 1 Q. B. 158; Luther v. Sagor (1921), 1 K. B. 456, 471.

ing Government, sovereign within its own territories. There, necessarily, its jurisdiction is exclusive and absolute. It is susceptible of no limitation not imposed by itself. This is a result of its independence. It may be conceded that its actions should accord with natural justice and equity. If they do not, however, our courts are not competent to review them. They may not bring a foreign sovereign before our bar, not because of comity, but because he has not submitted himself to our laws. .. Concededly that is so as to a foreign Government that has received recognition. . . . But whether recognized or not the evil of such an attempt [to hold it amenable to suit] would be the same.”

It seems quite clear to the writer that the reasoning of the Court of Appeals in this case is out of harmony with the line of judicial opinion shown in this chapter. The court, in effect, recognized the legal existence of a Government, which the court's own Government had refused to recognize. As has been above suggested the court could and should have reached the result it did reach by dismissing the action upon the ground that, in the eyes of the law, the defendant had no existence as a legal entity.

CHAPTER XXII

EXTRATERRITORIAL JURISDICTION

Most writers do not attempt to distinguish in use between the two terms exterritorial and extraterritorial. There is, however, a clear distinction, and it is unfortunate that the latter term should so generally be used to cover the idea connoted by the former. When persons,diplomatic officials for example, are treated as exempt from the ordinary jurisdiction of the State within whose territory they are, there exists a situation that can properly be spoken of as exterritorial. This status has been earlier discussed. When a State asserts a jurisdiction over persons or things outside its own territorial limits, there is presented a case of extraterritoriality. It is with this type or phase of jurisdictional authority that the present chapter will be concerned, and first will be considered the actual exercise by one State of jurisdiction upon the soil of another State.

Instances of the exercise of this kind of extraterritorial jurisdiction are of two kinds, both being dependent upon the consent, express or implied, of the States in which the jurisdiction is exercised. First we have the authority exercised by the diplomatic and, in some cases, by other officials of a State when abroad, upon public vessels, and, to some extent, upon private vessels, in foreign territorial waters or ports. It has already been shown that the jurisdiction thus exercised is not inconsistent with the exclusiveness of the territorial sovereignty of the State in which it is exercised because that State gives its consent to it. It does, however, illustrate the fact that the

exercise of a State's sovereign competence is not, by its very nature, confined within fixed territorial limits.

Ships in Foreign Ports. The correlative immunity from local jurisdiction that, according to general international practice, is granted to the public ships of one State in the ports or territorial waters of another State is practically complete. The immunity that is conceded to foreign merchant or other private ships is not so complete, and the obligation to grant any immunity at all appears to rest rather upon international comity than upon international law. This is not to say that States do not assert a right to extend the operations of their laws to acts committed upon their own private ships while in foreign ports or other territorial waters, but that the local sovereignties when they see fit claim a right to exercise a jurisdiction over those same ships.

The state of the law in this respect is illustrated by the case of Regina v. Anderson,1 decided in 1868, in which the Court for Crown Cases Reserved asserted jurisdiction in the case of an American charged with murder committed on board a British vessel, upon which he had enlisted as a member of the crew, and while the vessel was within French territorial waters. C. J. Bovill, said:

Although the prisoner was subject to American jurisprudence as an American citizen, and to the law of France as having committed an offense within the territory of France, yet he must also be considered as subject to the jurisdiction of British law, which extends to the protection of British vessels, though in ports belonging to another country. . . . It appears that, with regard to offenses committed on board of foreign vessels within the French territory, the French Nation will not assert their police law unless invoked by the master of the vessel, or unless the offence leads to a disturbance of the peace of the port.

The two following cases are interesting as showing not only the character of questions of jurisdiction that may 1Cox, C. C. 198.