With this understanding, and in order to avoid inextricable confusion, the states of the world confined, in general, their criminal legislation to the territory of their own, save some exceptions allowed by international law, the common law of nations.

We shall have now to explain how far the law of nations indulges in such exceptional extraterritorial jurisdiction.

B.-EXTRATERRITORIAL CRIMINAL JURISDICTION AS FAR AS IN ACCORDANCE WITH INTERNATIONAL LAW.

If our argumentation that

(a) The origin and aim of criminal legislation at all are "selfdefense and safety;"

(b) The understanding of territoriality of criminal jurisdiction of a state is valid towards civilized nations only

If that our argumentation be right, it would follow that international law grants to every state, in which the law of nations is a part of the law of the land, the right to legislate on extraterritorial criminal jurisdiction.

Aa.-In behalf of the state (according to B a.)

Bb. In the interest of mankind (according to Bb.)

Cc.-On mutual consent of the states (according to Ba and b.)

Aa.-IN BEHALF OF THE STATE.

We contend that we are entitled to legislate on extraterritorial jurisdiction on account of the self-defense and in behalf of the safety of the state towards other states; that is to say, to provide for punishment of foreigners' foreign offenses against the safety, the order, and the peace of our state: Provided, of course, that such legislation be not at variance with the similar necessities of other states abiding under the protection of the same law of nations.

Bb.-IN THE INTEREST OF MANKIND.

We contend that we may assume, in the interest of mankind, a triple extraterritorial criminal jurisdiction differing—

(1) As to the place of commission of offense;

(2) As to the nature of offenses;

(3) As to the quality of persons.

(1) As to the place of commission of offenses.-We all know that we may assume extraterritorial criminal jurisdiction over places where no other civilized authority yet exists, as in certain lands of barbarous or half-barbarous tribes or nations; over places, where on account of the place being common property of mankind, no special jurisdiction of a special state can be established at all, as on the high seas.

(2) As to the nature of offenses.-We may assume extraterritorial criminal jurisdiction over offenses against the law of nations, as piracy, slave trade, breach of neutrality, etc.

(3) As to the quality of persons.-We may assume extraterritorial criminal jurisdiction over the officers, and partially over the subjects, of the state, wherever they may be.

Cc.-ON MUTUAL CONSENT OF THE STATES.

We extend the criminal jurisdiction of the state to such extraterritorial places as were conceded by mutual consent in each state to other states for jurisdiction, as the office of the diplomatic representant and public vessels in foreign countries, this being mainly an emanation from the mutual comity of the states granting

(a) Exemption from detention to sovereigns of foreign states; (6) Immunity to foreign ministers;

(7) Immunity to troops which a sovereign allowed to pass through his dominion.

These three species (Aa, Bb, Ce) of extraterritorial criminal jurisdiction may be referred

The I species (Aa, safety of the state) to necessity,
The II species (Bb, interest of mankind) to utility,
The III species (Ce, mutual consent) to commodity.

And by these three species or classes all extraterritorial criminal jurisdiction, as far as warranted by international law and harmonious with the general principles of territorial jurisdiction, is exhausted.

It remains for us now to explain in detail those three classes of extraterritorial criminal jurisdiction under the authority of international law, and to support them by reasons additional to those shown by the derivaion itself of "extraterritorial criminal jurisdiction" from territorial.

And herewith we shall try to find out how far the United States made use of their right of assuming "extraterritorial criminal jurisdiction" under the authority of international law.

C. THE THREE CLASSES OF "EXTRATERRITORIAL CRIMINAL JURISDICTION UNDER AUTHORITY OF INTERNATIONAL LAW."

1-FOR SELF-DEFENSE AND SAFETY OF THE STATE.

(a) The principle itself.

The right of self-defense is a well-recognized law of nature, against which all protests prove a failure every time. And as we grant the right of self-defense to individuals, we shall have to concede it so much the more to the state, that great combination of individuals. But this right of self-defense of the state were an illusory one should it remain restricted to offensive acts committed within the borders of the state. If self-defense be not disallowed at all, we shall have the right to

defend our safety against whatever offender from whatever direction. If self-defense and safety of the state are cause and aim of territorial criminal legislation, self-defense and safety must be sufficient reasons for extraterritorial criminal legislation, too, providing for punishment of foreign offenses against the safety, the peace, and the order of the state.

(b) Special reasons supporting the principle.

(a) No duty without right.-By international law every state is bound to prevent by state law its citizens from committing acts of overt hostility against other States. This duty implies the right of the state to provide also for its protection against hostilities from subjects of other states.

(B) International law of England as well as of the United States recognizes the excusability of a state intruding, in cases necessary for selfprotection, on the territory or the waters of a foreign nation.

The celebrated Sir R. Phillimore, in his commentaries on international law, says:

The right of self-protection is prior and paramount to that of territorial inviolability.

And Prof. Francis Wharton, in his Digest of International Law of the United States (see § 50) says:

When there is no other way of warding off a perilous attack upon a country, the sovereign of such country can intervene by force in the territory from which the attack is threatened, in order to prevent such attack.

Now, if a state has the right to intrude for self defense on a foreign territory, it has a fortiori the right to provide for punishment of foreign offenses against the state, should the offenders be caught within the state.

More explicitly: If warding off a threatened foreign attack warrants intrusion on foreign territory, such warding off must be allowed to the threatened state on its own soil so much the more.

(y) Conception of ideal consummation.-There may be remarked in criminal law a certain class of offenses, as to the "consummation" of which the notion is disputable, to wit: foreign offenses against the safety, the order, and the peace of the state. If we commit an offense against the safety, etc., of a foreign state, the results of our acts are intended to take effect in that foreign state; thus our offense, although technically consummated in the territory of the perpetrator, may be considered as ideally consummated in that foreign country. Such in-. terposition of ideal consummation for the technical one is no novel point at law. (But see "Restrictions," sub. (d) page 16.)

Connected with this theory, or rather dependent on it, is the theory

of

(6) Intraterritorial liability of extraterritorial principal and acces sory. The latter theory was exhaustively dealt with by Professor

Wharton in "Treatise on Criminal Law," §§ 278 seq., and supported by numerous instances.

(c) Extension of the principle.

As to the right of self-defense of a state, it is no matter whether that self-defense of a state against foreign offenders be confined to offenses against the state itself, to wit: its constitution, its independency, its seal, its lawful money, or be extended to offenses against the citizens of that state. As the state is composed of citizens, and the latter, with their government representing them, constitute the state, such state may justly extend its right of self-defense to the defense of its citizens and provide for their protection against injury, as well as for protection of the State itself.

From this point of view-though strange it may seem to EnglishAmerican practice-that noted Mexican statute on foreign libel hardly could be contested. Professor Wharton, in his alleged "Treatise on Criminal Law," brings the case of foreign libel under "Liability of extraterritorial principal;" but there is no need to call for a secondary reason, while foreign libel may be put under the main principle of self-defense of the state or its Citizens.

Such legislation, like the alleged Mexican one, seems to be of course somewhat fribble, and a really great country never probably would take such a troublesome step to call for account a foreign libeller and to waste the time with such triiling. But that Mexican statute, like some other and much coarser strangeness, is a "legal" one.

Moreover, the most European states do not go so far as Mexico does. Especially Germany and France do not include foreigners' foreign libel in their provisions against foreigners' foreign offenses.

(d) Restrictions to the Principle.

Self-defense, like all other rights, has its limits, for exceeding of which we are to be held responsible. We are not allowed, for instance, to shoot at a boy for throwing us with snow-balls; nor to keep, for the sake of our safety, a dog assailing passers-by, or bellowing up the sleeping neighborhood night by night.

We recognize only justified "self defense."

In this connection a state can not complain of "foreigners' foreign offenses "against the peace, the order, and the safety of the state, if the acts complained of were committed in the legitimate use of the constitutional or legal rights of such foreign state, or in behalf of its constitutional liberty. In this case the right of self-defense belongs to both sides alike, and no party can be punished by the other one. A state can not extend its punishing right of self defense-in behalf of the peace, the order, and the safety of the state-to a degree of outrage, to wit, to a degree of interference with the right of self-defense of ANOTHER state.

This matter will be amply covered by our chapters IV and V, dealing with French and German legislation on "foreigners' foreign offenses against the state."

2.-IN THE INTEREST OF MANKIND.

(a) As to places (uncivilized lands and high seas):

From the understanding between all civilized nations that each and every one restricts, in general, criminal jurisdiction to their own territory, in order to not aimlessly interfere with other nations' jurisdiction, the point of view arises, that every state may extend its jurisdiction to such places as

(a) Are not yet covered by jurisdiction of any special state; or (6) Can not be covered at all by jurisdiction of any special state. Such places are—

(a) Unsettled and uncivilized lands;

(B) The high seas, common property of mankind.

Support to the argument.

(a) The aim of extraterritorial jurisdiction in uncivilized lands and on the high seas is, first, to protect our citizens sojourning at such places. "As far as a state can protect itself, so far its jurisdiction extends" (Kent).

The second reason is, to promote humanity in the world, to lend protection to human beings wanting the blessure of safeguard of a national law at those places.

Either of these reasons is sufficient to warrant to any state the assumption of extraterritorial jurisdiction. Practice, however, secured general recognition to extraterritorial criminal jurisdiction on the high seas far earlier than to extraterritorial criminal jurisdiction over uncivilized lands.

"It is generally conceded that subjects should be held responsible to the courts of their country for offenses committed in barbarous or unsettled lands" (Wharton's Criminal Law, § 271), while not all authorities are of the opinion that "any government may assume jurisdiction over offenses committed in solitudes, as in cases of crimes committed on the solitudes of ocean." (Sentence of a judge of the New Jersey supreme court, quoted in Wharton's Criminal Law).

According to our sytem, laid down in part B3 of this chapter, subjects are responsible to the state of their allegiance everywhere, including barbarous and unsettled lands. The lack of general recognition to the right of the state to assume extraterritorial criminal jurisdiction over offenses committed in barbarous and unsettled lands is probably less due to a denial of the principle, but to commodity. For as it is apparent that an uncivilized land, after having been settled upon by subjects of one state will soon exercise some attraction for settlement to citizens of other states, too, the state of the first settlers chooses to confine its jurisdiction in that uncivilized land to its own subjects from the mere S. Mis. 211- -2