IN GENERAL

[§ 218 out the national domain, whether land or water, or upon its vessels, whenever by reason of their character or position they are regarded as subject to its control. Conversely, a State cannot determine the lawfulness of occurrences in places outside of, or not assigned constructively to, its control.1

A State is called upon to determine the effect of the lawfulness or unlawfulness of an act when it has been committed abroad, and a legal or illegal character impressed upon it by a foreign power. In determining the respect to be paid to that character by its own tribunals, the territorial sovereign may not unreasonably exercise wide discretion.2 A State may, for example, command its national not to commit a particular act in a foreign country. He who in defiance of the prohibition disobeys the command therein, violating no law of that country by so doing, and thereupon returns to his own State, may doubtless be subjected to punishment. In imposing upon him a penalty for disobedience, the aggrieved sovereign does not pass judgment upon the lawfulness of his conduct abroad - which is a foreign fact, but simply declines for reasons of policy to recognize that lawfulness by permitting it to shield the actor from prosecution. On the other hand, the lawful character impressed upon an act by the State within whose territory it occurred, not infrequently receives complete recognition in a foreign country, even though to a similar act there committed a different legal quality would be attached. This is true when, for example, that country has not endeavored to forbid the commission of the particular act in the place where it was committed, and no adverse local policy presents an obstacle.

The law of nations does not always permit a State to disregard the legal or illegal quality of acts committed abroad. This is made obvious when it attempts to question the propriety of conduct committed by an alien in foreign territory, and notably when it endeavors to punish him on account of acts there com

Rose v. Himely, 4 Cranch, 241; The Apollon, 9 Wheat. 362; Le Roy v. Crowninshield, 2 Mason, 151; American Banana Co. v. United Fruit Co., 213 U. S. 347, 355-357. See, also, Mr. Marcy, Secy. of State, to Mr. Hülsemann, Austrian Chargé d'Affaires, Sept. 26, 1853, H. Ex. Doc. 1, 33 Cong., 1 Sess., 33, Moore, Dig., II, 213.

When the national of a State goes abroad and commits an act in a land where civilization does not prevail, and where there is no territorial sovereign regarded as having the right or power to demand obedience to its will or to impress a legal or illegal quality upon acts, the individual may be said to be subject to the laws of his own State in so far as they are applicable to his conduct. Upon his return to its domain, if it tests the propriety of his conduct by those laws, the question does not arise whether heed should be paid to any foreign local effort to attach a legal quality to his act, because there existed no political power regarded as capable of doing so.

mitted which are not in any way directed against its own safety.1 The according of recognition to the legal character impressed upon acts by the foreign State within whose territory they were committed tends to check abuses of jurisdiction.

b

§ 219. The Establishment of a Judicial System.

The exercise of jurisdiction requires the establishment of courts of justice as well as of a system of judicial procedure by means of which the general decision of the territorial sovereign concerning both the lawfulness and unlawfulness of acts committed within places subject to its control, and the respect to be paid to lawful or unlawful acts committed abroad, may be enforced. In the establishment and maintenance of its judicial system it will be seen that a State enjoys large freedom. Subject to a few exceptions fixed by the law of nations, it will be found that aliens within the national domain are subject to the jurisdiction of the territorial sovereign and amenable to its laws.2

The extent of the jurisdiction of a particular tribunal must always in one sense be a matter of domestic law, and fixed according to the will of the territorial sovereign. The society of nations is unconcerned save when a State attempts to clothe its courts with a power in excess of that which it itself, according to the principles of international law, is permitted to exercise. The tribunal upon which excessive jurisdiction is locally conferred will doubtless not refrain from exercising on occasion the full measure of what is definitely given it, regarding as political any question as to the international wrong attributable to its conduct,

1 Extra-Territorial Crime, infra, § 243.

2 Mr. Bayard, Secy. of State, to Mr. Brook, Jan. 7, 1887, citing Mr. Marcy, Secy. of State, to Mr. Fay, Nov. 16, 1855, 162 MS. Dom. Let. 508, Moore, Dig., II, 92; Opinion of Dr. Wharton, Solicitor to Dept. of State, in case of William A. Davis v. Great Britain, 1885, cited by Mr. Day, Acting Secy. of State, April 6, 1898, 227 MS. Dom. Let. 228, Moore, Dig., VI, 699; Mr. Bayard, Secy. of State, to Mr. Copeland, Feb. 23, 1886, 159 MS. Dom. Let. 138, Moore, Dig., VI, 699. See, also, State v. Neibekier, 184 Mo. 211, 221222, citing McDonald v. State, 80 Wis. 407, People v. McLeod, 1 Hill, N. Y. 377, S. C. 25 Wend. 483, Campbell v. Hall, Cowp. 208, Vattel, bk. 2, ch. 8, secs. 101, 102, Story on Conflict of Laws, 518; Luke v. Calhoun County, 52 Ala. 115, 121; Carlisle v. United States, 16 Wall. 147.

Declared Cockburn, C. J., in Reg. v. Keyn: "No concurrent assent of nations . . can of itself without the authority of Parliament, give to the courts of this country, independently of legislation, a jurisdiction over the foreigner where they had it not before." 2 Ex. D. 63, 198, Beale, Cases on Conflict of Laws, I, 1, 9. See, also, Holland, Studies in International Law, 199.

THE ESTABLISHMENT OF A JUDICIAL SYSTEM [$ 219

and as one for solution solely through the diplomatic channel.1 Should, however, the extent of the assertion of jurisdiction of a State through the medium of its own judicial agency become with its consent the subject of adjudication before an international tribunal, the decision would necessarily rest upon the requirements of the law of nations.

Save for the general obligation to conform to the practices of civilized powers, a State is unfettered in its choice of forms of procedure or in the adoption of a particular code. No right of supervision or dictation is lodged abroad. Moreover, the action of the courts in interpreting the local law and in applying rules of procedure is not regarded as subject to revision by any external authority. Thus a State may in fact decline to permit the correctness of the decision of its own tribunals, or the reasonableness of the judicial enforcement of a particular rule to become the subject of diplomatic discussion. It must be clear, however, that

1 Cockburn, C. J., in Regina v. Keyn, 2 Ex. D. 63, 160, quoted in Holland, Studies in International Law, 199, note; Mortensen v. Peters, Am. J., I, 526; Simeon E. Baldwin: "The Part Taken by Courts of Justice in the Development of International Law", Yale Law J., X, 1; John C. Gray, The Nature and Sources of the Law, 122.

See, also, Marshall, C. J., in Foster and Elam v. Neilson, 2 Pet. 253, 307, 309; Jones v. United States, 137 U. S. 202; In re Cooper, 143 U. S. 472, 502-505; Pearcy v. Stranahan, 205 U. S. 257.

2 Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, on Thrasher's case, 6 Webster's Works, 521, 528, Moore, Dig., II, 88; Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé d'Affaires, Jan. 10, 1854, MS. Inst. Austria, I, 89, Moore, Dig., II, 88; Mr. Marcy, Secy. of State, to Mr. Starkweather, Minister to Chile, Aug. 24, 1855, MS. Inst. Chile, XV, 124, Moore, Dig., II, 90; Mr. Seward, Secy. of State, to Mr. Burton, Minister to Colombia, No. 137, April 27, 1866, Dip. Cor. 1866, III, 522, 523, Moore, Dig., VI, 660; Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97.

3 "It cannot be expected that any government would go so far as to yield to a pretension of a foreign power to revise and review the proceedings of its courts under the claim of an international right to correct errors therein, either in respect to the application of principles of law, or the application of facts as evidence in cases where the citizens of such foreign power have been convicted. It certainly could not be expected that such a claim would be allowed before the party making it had first presented a clear case prima facie of willful denial of justice or a deliberate perversion of judicial forms for the purpose of oppression." Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., II, 90. See, also, Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232–234, Moore, Dig., II, 97; Mr. Bayard, Secy. of State, to Mr. Brook, Jan. 7, 1887, 162 MS. Dom. Let. 508, Moore, Dig., II, 92; Mr. Olney, Secy. of State, to Mr. Chilton, M. C., June 5, 1896, 210 MS. Dom. Let. 496, Moore, Dig., II, 94.

4 See the position of Germany respecting the attitude of Mr. Olney, Secy. of State, in 1895, relative to the prosecution of Louis Stern at Kissingen, For. Rel., 1895, I, 454–488, especially Mr. Olney, Secy of State, to Baron Thielmann, German Ambassador, Sept. 26, 1895, id., 469, and Baron Thielmann, German Ambassador, to Mr. Olney, Secy. of State, Oct. 1, 1895, id., 479. For an abstract of the correspondence, cf. Moore, Dig., II, 93–94.

the courts may prove to be the instrumentality through which a State either denies justice or directly perpetrates injustice upon foreign powers or their nationals. Under such circumstances, the nature of what takes place is not disguised or altered by reason of the judicial agency which commits the wrong. In States where the courts are independent of the political department of the government, there is strongest reason to withhold diplomatic discussion of questions which have become the subject of judicial inquiry, until at least there has been a final adjudication resulting in a decision deemed by a foreign State to be at variance with international law or the terms of a treaty.1

Although a resident alien be prosecuted criminally according to a system possessing certain "harsh features" and deficient in many safeguards for the security of the accused,2 without trial by jury or the privilege of the writ of habeas corpus, and although the judicial proceedings be brief and summary,3 and instigated upon suspicion rather than upon proper cause alleged under oath, there may still be, in the particular case, no solid ground for complaint on the part of his government. A State must, therefore, be normally reluctant to interpose in an endeavor to interfere with the administration of justice as applied impartially to its nationals in a foreign country. On the other hand, a State will be quick to protest if the judicial system of another works palpable injustice to such individuals, either as a natural incident of procedure, or as a direct effect of adjudications.

4

Instances are frequent and varied. The application to an alien of local laws sharply at variance with treaty stipulations contracted for his benefit, will arouse complaint; likewise any discrimination

7

1 Mr. Adee, Acting Secy. of State, to the Italian Ambassador, No. 891, Oct. 1, 1910, For. Rel. 1910, 664, 670; Mr. Lansing, Secy. of State, to the German Ambassador, No. 2217, April 7, 1916, with reference to the case of the Appam, American White Book, European War, III, 342, 343–344.

Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé d'Affaires, April 6, 1855, MS. Int. Austria, I, 105, Moore, Dig., II, 89.

3 Report of Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, on Thrasher's case, 6 Webster's Works, 521, 528, Moore, Dig., II, 88.

'Mr. Marcy, Secy. of State, to Mr. Richter, Feb. 21, 1854, 42 MS. Dom. Let. 231, Moore, Dig., II, 90.

5 Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé d'Affaires, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., II, 89; Mr. Forsyth, Secy. of State, to Mr. Davee, Feb. 7, 1838, 29 MS. Dom. Let. 330, Moore, Dig., VI, 652.

Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97.

7 Mr. Marcy, Secy. of State, to Mr. Fay, Nov. 16, 1855, MS. Inst. Switzerland, I, 39, Moore, Dig., VI, 655; Case of Dr. M. A. Cheek against Siam,

THE ESTABLISHMENT OF A JUDICIAL SYSTEM [§ 219

1

against him on account of his nationality, especially if he is subjected to criminal prosecution. A perversion of the judicial system,2 manifested by the institution of criminal proceedings in order to oppress an alien, is not likely to be tolerated by the State to which he belongs. If his trial is conducted with gross injustice, if the local law be violated,5 if, while in custody he be accorded treatment harsh beyond measure, or if he is held or imprisoned on account of the commission of an act not forbidden as a crime by the local law, interposition is to be anticipated, unless local remedies afford a complete means of redress and are within the reach of the victim. Whenever the government of his own State has solid reason to believe from evidence before it that a denial of justice has occurred, it is justified in denying the pretension of the foreign prosecuting State that it may set up the judgment of its own tribunals as a bar to the international claim.7

Moore, Arbitrations, II, 1899-1908; Mr. Bayard, Secy. of State, to Mr. Brook, Jan. 7, 1887, 162 MS. Dom. Let. 508, Moore, Dig., II, 92; Mr. Blaine, Secy. of State, to Mr. O'Connor, Nov. 25, 1881, 139 MS. Dom. Let. 663, Moore, Dig., II, 96.

1 Report on Thrasher's Case by Mr. Webster, Secy. of State, to the President, Dec. 23, 1851, 6 Webster's Works, 530, Moore, Dig., VI, 698; Opinion of Dr. Francis Wharton, Solicitor of the Dept. of State, in the case of William A. Davis v. Great Britain, 1885, cited in note of Mr. Day, Acting Secy. of State, to Messrs. Lauterbach, Dittenhoefer & Limburger, April 6, 1898, 227 MS. Dom. Let. 228, Moore, Dig., VI, 699; Mr. Bayard, Secy. of State, to Mr. Copeland, Feb. 23, 1886, 159 MS. Dom. Let. 138, Moore, Dig., VI. 699; Case of C. A. Van Bokkelen, Moore, Arbitrations, II, 1807-1853, Moore, Dig., VI, 699.

2 Mr. Marcy, Secy. of State, to Mr. Jackson, Chargé at Vienna, April 6, 1855, MS. Inst. Austria, I, 105, Moore, Dig., II, 90.

3 Mr. Frelinghuysen, Secy. of State, to Mr. Lowell, April 25, 1882, For. Rel. 1882, 230, 232-234, Moore, Dig., II, 97; Mr. Marcy, Secy. of State, to Mr. Clay, Minister to Peru, No. 30, May 24, 1855, MS. Inst. Peru, XV, 159, Moore, Dig., VI, 659; Mr. Bayard, Secy. of State, to Mr. Jackson, Minister to Mexico, Sept. 7, 1886, MS. Inst. Mexico, XXI, 574, Moore, Dig., VI, 680; Mr. Evarts, Secy. of State, to Mr. Fairchild, Minister to Spain, Jan. 17, 1881, MS. Inst. Spain, XVIII, 591, Moore, Dig., VI, 656.

Mr. Evarts, Secy. of State, to Mr. Langston, Minister to Haiti, No. 23, April 12, 1878, MS. Inst. Hayti, II, 136, Moore, Dig., VI, 656; Mr. Evarts, Secy. of State, to Mr. Foster, Minister to Mexico, April 19, 1879, MS. Inst. Mexico, XIX, 570, Moore, Dig., VI, 696; Mr. Forsyth, Secy. of State, to Mr. Welsh, March 14, 1835, 27 MS. Dom. Let. 261, Moore, Dig., VI, 696.

Case of Dr. M. A. Cheek v. Siam, Moore, Arbitrations, II, 1899-1908, Moore, Dig., VI, 656.

See, for example, Case of C. A. Van Bokkelen, Moore, Arbitrations, II, 1807-1853, Moore, Dig., VI, 699; also Claims, Denial of Justice, infra, § 281-282.

7 Note of Dr. Francis Wharton, Wharton, Dig., II, 672, Moore, Dig., VI, 694; Report of Mr. Bayard, Secy. of State, to the President, Feb. 26, 1887, S. Ex. Doc. 109, 49 Cong., 2 Sess., Moore, Dig., VI, 667; also, Claims, Denial of Justice, infra, § 283-285.