matter involving its own jurisdiction, but should have left it for the Foreign Office of the American Government to take up the matter with the other Government if it were believed that an unwarranted doctrine of international law had been applied by its court.

It is interesting to note that in the case of Hudson and Smith v. Guestier,10 decided two years later, in 1810, the Supreme Court expressly overruled the doctrine of Rose v. Himely that a State cannot extend the force of its municipal laws to the high seas. Mr. Justice Johnson, rendering the opinion of the court, from which there was no dissent, said: "I am not able to perceive how it can be material whether the capture were made within or beyond the jurisdictional limits of France; or in the exercise of a belligerent or municipal right. By a seizure on the high seas she interfered with the jurisdiction of no other nation, the authority of each being there concurrent.11

The Apollon. In the case of The Apollon,11 the Supreme Court of the United States, speaking through Justice Story, again declared, with reference to a vessel seized while in Spanish waters by American customs officials, that, "The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation, within its own jurisdiction. And, however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons, upon whom the legislatures have authority and jurisdiction."

This case was a libel brought by the master of a French

vessel against an American customs official for damages occasioned by a seizure upon his part of the ship while within the acknowledged territorial jurisdiction of Spain, upon the alleged ground that the ship had violated an American statute. It was with reference to the justification, under this law, of an extraterritorial seizure that Justice Story employed the language that has been quoted. Further along in his opinion he said: "It would be monstrous to suppose that our revenue officials were authorized to enter into foreign ports and territories, for the purpose of seizing vessels which had offended against our laws. It cannot be presumed that Congress would voluntarily justify such a clear violation of the law of nations."

Even here, it will be observed, Justice Story did not flatly deny the legal authority of Congress to authorize an extraterritorial seizure, but only that such an authorization, in absence of express direction, should not be presumed. In other words, the court was not confronted with a case in which its own Government had asserted, in language from which there could be no escape, a right to exercise jurisdiction beyond its own borders, or within the borders of another State, or with reference to persons not its own citizens. It is, however, unfortunate that Justice Story should have expressed himself as broadly as he did. It is possible, however, that he did not mean more than to say that one nation is not called upon to recognize the validity, or acquiesce in the enforcement within its own dominions, of the municipal laws of another State. This, of course, is correct, but is quite a different proposition from the one that asserts that one State cannot bind its own courts when it asserts an extraterritorial jurisdiction upon the high seas or even within the territorial limits of other States.

American Banana Co. v. United Fruit Co. In the case of the American Banana Co. v. United Fruit Co.,12 decided in 1909, the plaintiff claimed damages, under the AntiTrust Act of 1890, for certain acts committed or instigated by the defendant in a foreign country. The court in its opinion admitted that there were both American and British instances of the assertion of extraterritorial jurisdiction, but nevertheless seemed so strongly impressed with the merits of the doctrine that, as a rule, jurisdiction should be exercised by a State only within its own borders, that it described as "startling" the proposition that acts committed outside of the United States should be claimed to be controlled by an Act of its Congress. "Law," said Mr. Justice Holmes, who spoke for the court, "is a statement of the circumstances in which the public force will be brought to bear upon men through the courts. But the word commonly is confined to such prophecies or threats when addressed to persons living within the power of the courts. A threat that depends upon the choice of the party effected to bring himself within that power hardly would be called law in the ordinary sense. We do not speak of blockade running by neutrals as unlawful. And the usages of speech correspond to the limit of the attempts of the lawmaker, except in extraordinary cases. It is true that domestic corporations remain always within the power of the domestic law; but, in the present case at least, there is no ground for distinguishing between corporations and men."

This is strong language against the doctrine of extraterritorial jurisdiction and yet it is seen that Holmes himself admits that there may be "extraordinary cases" in which it may be asserted. Indeed, in another part of his opinion he mentions a number of such instances, both

12 213 U. S. 347.

British and American. It is, however, quite right that he should use his argument to support the doctrine that, unless the legislature has clearly expressed or implied a contrary intention, municipal statutes should be given only a territorial force. "The foregoing considerations," he says, "would lead, in case of doubt, to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. 'All legislation is prima facie territorial' (Ex parte Blain, L. R. 12 Ch. Div. 522). Words having universal scope such as 'every contract in restraint of trade,' 'every person who shall monopolize,' etc., will be taken, as a matter of course, to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch."

In conclusion, then, of this point, we may say that there is nothing in the nature of sovereignty which confines the legal operation of its will, as expressed in the form of municipal law to its own citizens, or to its own territorial limits.

Criminal Jurisdiction as to Acts Committed Abroad. In criminal matters Great Britain and the United States act, in the main, upon the territorial principle, confining the jurisdiction of their courts for the most part to offenses committed upon British or United States soil as the case may be.

Russia, Austria, Italy, Norway, France (to a limited extent) and some of the Swiss Cantons, upon the other hand, claim and exercise a general criminal jurisdiction over their respective nationals wherever they may happen to be 13

"Some States, again," as Cobbett points out, "claim a criminal jurisdiction over offenses committed even by foreigners and on foreign soil, although this pretension

"Cf. Cobbett, Leading Cases on International Law, 3d ed., p. 226.

varies greatly in its scope. France, Germany, Austria, Italy, Spain, Belgium, and Switzerland appear to limit this to offences against the safety or high prerogatives of the State, in which case, if the offense has produced local effects its seat may perhaps be regarded as local. Russia, Italy, Mexico, Greece, and the Netherlands extend it to offences of a certain gravity, committed against their own subjects. Austria and Italy claim to take cognizance of offences committed by foreigners on foreign soil, which affect neither the State nor its subjects, so long as the offender has been arrested locally and an offer of extradition has been refused; a practice which makes a near approach to a cosmopolitan theory of criminal jurisdiction, as distinct from that which is wholly territorial or personal. The actual exercise of jurisdiction in such cases is subject to the condition that the offender shall have been arrested locally, for the reason that such claims would not generally constitute a good ground for a demand for extradition; and that he shall not previously have been tried elsewhere."14

14 Cobbett, op. cit., p. 226. For a more detailed statement of the laws of various States upon this matter, see Hall, International Law, 6th ed., pp. 207-210. Hall refers to the fact that, in 1879, the Institut de Droit International by a vote of 19 to 7 resolved that "tout état a le droit de punir les faits commis même hors de son territoire et par des étrangers en violation de ses lois pénales, alors que ces faits constituent une atteinte à l'existence social de l'état en cause et compromettent sa sécurité, et qu'ils ne sont point prévus par la loi pénale du pays sur le territoire duquel ils ont eu lieu." Cobbett enumerates the following classes of cases in which Great Britain has provided, by statute, for the trial and punishment through its own tribunals of offenses committed outside of British territorial limits: (1) Treason, (2) murder or manslaughter committed by British subjects on land outside the United Kingdom, (3) bigamy committed by British subjects anywhere [see especially Earl Russell's case, 1901, A. C. 446], (4) offences committed in territorial waters [these would hardly appear to be extraterritorial cases], (5) offences within section 4 of the Foreign Enlistment Act of 1870, committed by British subjects anywhere, (6) offences under the Slave Trading Act of 1824, if committed by British subjects or any person resident within the British dominions, (7) offences committed out of the British dominions by any seaman who at time of the offence or within three months previously has served on board a British vessel, (8) offences committed by British subjects in countries without regular government, and coming within the terms of the Foreign Jurisdiction