committed on the "high seas" or any river, haven, basin, or bay, out of the jurisdiction of any particular State." (Sec. 8, chap. 9, act approved April 30, 1790: 1 Stats., 113.)

The United States Supreme Court held this act to be constitutional, and applied to foreigners when the offense was committed on board a vessel of the United States, or to any person committing the offense on a vessel which had no national character. (United States. Furlong, 5 Wheat., 184: United States. Holmes, 5 Wheat.. 412: United States. Klintock, 5 Wheat., 144.)

In 1820 the Congress of the United States passed an act which provided that---

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Every person who, being of the crew or ship's company of any foreign vesel engaged in the slave trade, lands from such vessel and, on any foreign shore, seizes any negro or mulatto with intent to make such negro or mulatto a slave, is a pirate, and shall suffer death. (See sec. 5376, Rev. Stats. U. S.)

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This act was directed against the practice of seizing the inhabitants of Africa and converting them into slaves. It was an assertion of world-wide sovereignty, and illustrates the doctrine that the sovereignty of a nation terminates only where the prior rights of another recognized sovereignty begin, and may attach itself to any land or territory not within the jurisdiction of a recognized sovereignty.

It is only necessary to call attention to the legislation of Congress regarding the many persons and matters subject to the maritime and admiralty jurisdiction of the United States to establish that Congress has extraterritorial powers of legislation. Extraterritorium means beyond or outside of the territorial limits of a state (6 Binn., 353), and by extraterritorial powers of legislation is meant the authority to create legislation which will operate upon persons, rights, or laws beyond the limits of the state, but which are still amenable to its laws. These powers are not confined to the seas. By treaties or other international agreements, upon principles of the comity of nations and the usages of the world, the sovereign people of the United States acquire many rights to trade in the territory and with the inhabitants of other nations. When acquired, these rights belong to the sovereignty of the United States, and are sovereign rights, the exercise of which may be and are regulated by Congressional legislation. The same is true of our relations with foreign governments as maintained and conducted by our representatives and instrumentalities in foreign lands. They remain within the jurisdiction and subject to the sovereignty of the United States, although without its territorial boundaries. The exact rule is that wherever the sovereignty of the United States may be asserted, the Congress of the United States may prescribe the ways and means, the manner and methods by which such sovereignty is to be asserted.

The determination of the question as to where the sovereignty and jurisdiction of the United States shall be asserted is to be made by the Congress and the Executive. It is a political question, and calls for the exercise of powers possessed by the political branch of the Government. In United States. The James G. Swan the court say:

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As our Government is constituted, the President and Congress are vested with all the responsibility and powers of the Government for the determination of questions as to the maintenance and extension of our national dominion. It is not the province of the courts to participate in the discussion or decision of these questions, for they are of a political nature, and not judicial. The Congress and the President having assumed jurisdiction and sovereignty, and having made declarations and assertions as to the extent of our national authority and dominion above indicated all the people and courts are bound by such governmental acts, declarations, and assertions * and the responsibility of maintaining the national authority within the boundaries so fixed, and to the extent asserted by the executive and legislative authority against foreign governments, rests with the executive and legislative branches of the Government. (United States . The James G. Swan, 50 Fed. Rep., 108, 111.)

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With reference to the same question, the United States Supreme Court say (137 U. S., 212):

Who is the sovereign, de jure or de facto, of a territory is not a judicial but a political question, the determination of which, by the legislative and executive departments of any government, conclusively binds the judges as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court and has been affirmed under a great variety of circumstances. (See authorities cited.)

Continuing the discussion, the court say (p. 214):

All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the soverignty of the foreign power, as appearing from the public acts of the legislature and the executive. (See authorities cited. Jones v. United States, 137 U. S., 202, 212, 214.)

The legislation enacted by Congress regarding consular courts (Title 47, p. 783, U. S. Rev. Stats.), conferring jurisdiction thereon and regulating procedure therein, is also an example of the exercise of its power of extraterritorial legislation by Congress. This legislation was sustained by the United States Supreme Court in a case wherein a man had been convicted and sentenced to death by the American consular tribunal in Japan. (In re Ross, 140 U. S., 453.) The case was as follows: John M. Ross, a seaman of the American ship Bullion, was charged with murder, committed on board said ship while in the harbor of Yokohama, Japan. He was placed on trial before the consulgeneral of the United States at Kanagawa, Japan, sitting as a court in that place, in pursuance and by authority of the statutes of the United States for that purpose made and provided. He was not indicted by a grand jury, but a complaint in writing was filed in said tribunal. The accused demanded a trial by jury, which was denied, and the court

proceeded to hear and determine the case without a jury, entered judgment of conviction, and sentenced the accused to be hanged. The President of the United States commuted this sentence to life imprisonment in the penitentiary at Albany, N. Y.

After being incarcerated in said prison for nearly ten years, Ross applied to the circuit court of the United States for the northern district of New York for a writ of habeas corpus for his discharge, alleging that his conviction, sentence, and imprisonment were unlawful, and stating the causes thereof and attendant circumstances. The writ was issued directed to the superintendent of the penitentiary, who made return that he held the petitioner under the warrant of the President, a copy of which was annexed. The circuit court, after full consideration of the subject, entered an order denying the motion for discharge and remanding the prisoner to the penitentiary. From that order an appeal was taken to the United States Supreme Court. Therein it was contended that the United States consular court by which he was tried was without jurisdiction of his person, because he was not a citizen of the United States and was a subject of Great Britain; that said consular court was without jurisdiction of the offense charged because it was committed aboard a vessel of the United States on the high seas, and by the laws of the United States such offenses so committed were to be tried in the United States before its domestic tribunals; that if it were held that the offense was committed in Japan and not upon the high seas, then, the prisoner insisted, that--

The statutes creating the consular courts, as well as the treaties under which they are instituted and from which they derive such authority and jurisdiction as they possess, expressly subject that jurisdiction to the laws of the United States.

The claim that the Constitution has no extraterritorial force is disproved by the existence and operation of the consular court itself.

The refusal to allow the accused a trial by jury was a fatal defect in the jurisdiction exercised by the court, and renders its judgment absolutely void. (See 140 U. S., 460.) The holding of the court, as stated in the syllabus, is as follows:

By the Constitution of the United States a government is ordained and established "for the United States of America," and not for countries outside of their limits; and that Constitution can have no operation in another country.

The laws passed by Congress to carry into effect the provisions of the treaties granting extraterritorial rights in Japan, China, etc. (Rev. Stats., §§ 4083–4096), ‹lo no violation to the provisions of the Constitution of the United States, although they do not require an indictment by a grand jury to be found before the accused can be called upon to answer for the crime of murder committed in those countries or to secure to him a jury on his trial.

Regarding the authority of Congress to legislate for territory without the boundaries of the United States, the court in the body of the opinion say:

We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out,

contending that, so far as crimes of a felonious character are concerned, the same protection and guarantee against an undue accusation or an unfair trial secured by the Constitution to citizens of the United States at home should be enjoyed by them abroad. In none of the laws which have been passed by Congress to give effect to treaties of the kind has there been any attempt to require indictment by a grand jury before one can be called upon to answer for a public offense of that grade committed in those countries, or to secure a jury on the trial of the offense. Yet the laws on that subject have been passed without objection to their constitutionality. Indeed, objection on that ground was never raised in any quarter, so far as we are informed, until a recent period.

It is now, however, earnestly pressed by counsel for the petitioner, but we do not think it tenable. By the Constitution a government is ordained and established "for the United States of America," and not for countries outside of their limits. The guaranties it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.

The Constitution can have no operation in another country. When, therefore, the representatives or officers of our Government are permitted to exercise authority of any kind in another country it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, can not invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. And besides, their enforcement abroad in numerous places, where it would be highly important to have consuls invested with judicial authority, would be impracticable, from the impossibility of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries if commercial intercourse was to be had with their people, never could have supposed that all the guaranties in the administration of the law upon criminals at home were to be transferred to such consular establishments and applied before an American who had committed a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of investing the consul with judicial authority. While, therefore, in one aspect the American accused of crime committed in those countries is deprived of the guaranties of the Constitution against unjust accusation and an impartial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive, and sometimes accompanied with extreme cruelty and torture. (In re Ross, 140 U. S., 463, 465.)

The right of Congress to confer jurisdiction in civil matters upon consular courts was declared to exist by the United States Supreme Court in Dainese v. Hale, 91 U. S., 13.

The constitutionality of Congressional legislation regarding consular courts is discussed and sustained in the following cases: Mahoney . United States (10 Wall., 66, 67); In re Joseph Stupp (11 Blatchford, 124); United States v. Craig (28 Fed. Rep., 801), (opinion by Justice Brown); United States v. Smiley (6 Saw., 645), (opinion by Justice

Fields); Steamer Spark. Lee Choi Chum (1 Saw., 713); Tazaymon 7. Twombly (5 Saw., p. 79); The Pingon (7 Saw., 483); The Pingon (11 Fed. Rep., 607).

Pursuant to the provisions of Title 47, sections 4083 to 4130, the United States is maintaining consular courts in the following countries: China, Korea, Maskat, Morocco, Persia, Samoa, Siam, Tonga, Turkey, and Zanzibar.

This Government also maintained consular courts in Japan up to July 17, 1899, when the new treaty with Japan, which abolished these courts. went into effect.

The right of legislation in regard to consular courts in territory within the jurisdiction of a recognized sovereignty with which the United States maintains foreign relations is to be exercised in accordance with existing treaty stipulations in regard thereto. The right is not created by the treaty, but is simply regulated thereby. Consular courts are instituted and maintained in countries subject to the dominion of semicivilized or barbarous people whose chieftains we do not recognize as possessing sovereign powers and with whose government we do not make treaties nor maintain foreign relations.

Section 4088, Revised Statutes of the United States, is as follows: The consuls and commercial agents of the United States at islands or in countries not inhabited by any civilized people or recognized by any treaty with the United States are authorized to try, hear, and determine all cases in regard to civil rights, whether of person or property, where the real debt or damages do not exceed the sum of $1,000, exclusive of costs, and, upon full hearing of the allegations and evidence of both parties, to give judgment according to the laws of the United States and according to the equity and right of the matter, in the same manner as justices of the peace are now authorized and empowered where the United States have exclusive jurisdiction. They are also invested with the powers conferred by the provisions of sections 4086 and 4087 for trial of offenses or misdemeanors.

Regarding this section Attorney-General Garland said:

The jurisdiction thus conferred is based upon the well-received doctrine of international law that consuls in barbarous or semibarbarous States are to be regarded as investing with extraterritoriality the place where their flag is planted, and if justice is to be administered at all, so far as concerns civilized foreigners visiting such States, it must be by tribunals such as are named in section 4088, Revised Statutes. (18 A. G. Op., 219, 220.)

The United States has acquired and still retains certain rights in the Samoan Islands. Wharton's International Digest, Vol. 1, sec. 63, contains the following:

In March, 1872, certain commercial arrangements were made by Manga, chief of Tutuila, and commander Meade, of the U. S. S. Narragansett, for the use of the port of Pango-Pango. According to a summary in the Nineteenth Century for February, 1886, "It was arranged that Pango-Pango should be given up to the American Government, on condition that a friendly alliance existed between that island and the United States. Pango-Pango Harbor has thus passed forever from the hands of the British."