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direction, and what are its limitations. In proceeding to trace its extension, we will see further exhibited the progressive character of our jurisprudence as a practical science. 1. Any attempt to exercise extra-territorial jurisdiction in real actions, would necessarily have been futile. Consequently, no such attempt has ever been made; but Lord Mansfield, always eager ampliare jurisdictionem, held that a personal action to recover a pecuniary compensation, as damages, for an injury to lands in a foreign country, was maintainable. But this decision was overruled; and it is now firmly established in England and this country, that no such action will lie, however enormous the injury. And it makes no difference that the refusal to take cognizance may leave the injured party wholly without redress, and may actually convert the State into a city of refuge for the wrong-doer. (Doulson a. Mathews, 4 T. R., 503; 1 Metc. & Perkins' Dig., p. 66, § 224; Livingston a. Jefferson, 1 Brock., 203; Watts a. Kinney, 6 Hill, 87; Mr. Chitty's note to 3 Blackst. Com., 294.) Neither can a court of equity give a remedy. (Northern Indiana Railroad Company a. Michigan Central Railroad Company, 15 How. (U. S.) R., 242–244.) All courts are governed by rules of law settling the boundaries of their jurisdiction. No court known to our system "administers justice in general." (Per MAULE, J., in De Bode a. Regina, 13 Ad. & Ell., N. S., 386, note.) 2. The protection of trade and commerce has induced the courts of common law to remedy by action injuries to personal property committed on the high seas and in foreign parts; and it may be considered that in general, such an action will be allowed in the courts of law, even where both parties are strangers. For this purpose, the fictitious supposal has been allowed in these cases. (Glen a. Hodges, 9 Johns., 69; M'Kenna a. Fisk, 1 How. (U. S.) R., 248, 249; Mitchell a. Harmony, 13 lb., 137; Percival a. Hickey, 18 Johns. R., 258; Ruan a. Perry, 3 Cai., 121; Mason et al. a. The Blaireau, 2 Cranch, 264; Hale, &c., a. Lawrence, and other cases, 1 Zabr., 248-266; Ib., 714-751; 2 Ib., 72-117; see 107; 3 Zb., 9-28; 590-616. See also Hon. H. E. Davies' separate report of American Print Works a. Lawrence.) 3. As it respects personal torts committed without the country, the fictitious supposal before alluded to, and by which jurisdiction is gained, as it were, by stealth, has not been introduced, or, at least, has found reception

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only in certain classes of very special cases. The present action cannot be ranged under any of these classes. (a) Torts upon the high seas are remediable in the admiralty. And, though it is a disputable point, we might concede that, in proper cases, the common-law courts may assume concurrent cognizance of them. (Wilson a. Mackenzie, 7 Hill, 97; Benedict's Adm., $$ 46, 126, 308.) The jurisdiction in these cases is yet an unsettled question between the admiralty and the common-law courts. It is unnecessary to touch that question in this case. But, as we shall presently show, not only the court of admiralty, but the common-law court, exercises a discretion whether or not it will take cognizance of personal torts in actions between strangers. (b) Torts committed upon the person or personal rights of one of our own citizens in a foreign State or country, should be remedied by all means in our power. Like the natural right of self-defence in individuals, the right of protecting its own members from outrage is an inherent right of every organized community. It is not only a right, but a duty. Consequently, we will admit that under its qualified power of adapting itself to the due administration of justice, the common-law court may extend its fictitious supposal to this case. (See Mr. Butler's learned note to Coke on Litt., 291 a, last page of the notes, vol. 3.) Whether this principle should apply as between the States of this Union, so as to warrant a New York court in taking cognizance of an action for an assault committed on a citizen of New York in California, by a citizen of California, is a very delicate question. It may be greatly doubted whether it could be allowed. The United States courts in California afford a full remedy. (c) One other class of cases deserves notice. Should a State allow to a stranger the privilege of prosecuting in its courts for a personal tort committed in some foreign place, not within the territory of any regular government? We do not admit, but for the purposes of this case will assume, that it may be a part of the duty which every civilized State owes to the general society of mankind, to allow a judicial remedy in such cases against an aggressor found within its territories, when no redress can be had elsewhere, and when exercising the jurisdiction would not involve greater public inconvenience. Such a policy might, under certain circumstances, allow of the vindication of a stranger's wrongs by civil

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action here, in the case supposed, against one of our own citizens found here. (Rafael a. Verelst, W. Blacks., 983-1056, 1067.) But it would never warrant an action here for a personal tort committed in the wilds of Africa, on a foreigner, by a subject or citizen of a civilized State permanently dwelling therein, and easily suable in its courts, though such wrongdoer should happen to be served with process when temporarily here. We insist, therefore, that according to established principles, our common-law courts cannot entertain a suit to redress a personal tort suffered by a citizen or subject of another State or country within its territory, at the hand of a fellow-citizen or subject. And if such a jurisdiction does exist, its exercise cannot be claimed ex debito justitiæ, but rests in sound discretion. (Johnson a. Dalton, 1 Cow., 548; Taylor a. Carryl, 20 How. (U. S.) R., 611; Gardner a. Thomas, 14 Johns., 136.) Lord Mansfield's opinion in the great case of Fabrigas and Mostyn, which has been read with great interest by every lawyer, might give rise to some misapprehension on this subject in the mind of a casual reader. But it does not militate in the least against our position; we say that English courts of common law have never entertained an action for a personal tort committed in a foreign civilized State on a citizen or subject thereof. Mostyn a. Fabrigas (1 Smith's Lead. Cas., 355, 356; 20 State Tr., 82) was a suit in England, by an English subject against an English governor, for personal injuries committed in an English province. It may have been right; it was a strong-handed decision of Lord Mansfield, made in 1774. In point of jurisdiction it was mainly founded upon a peculiar control over provincial functionaries, claimed by the court. It throws no light upon this question. There are many other cases like Mostyn a. Fabrigas. The home courts seem to have justly exercised a supervisory jurisdiction over English officials, acting oppressively in English colonies. It seems to have been necessary to hold them amenable to civil justice in English courts. (Per Powell, J., 6 Mod., 195; Lord Bellamont's Case, 2 Salk., 625; Comyn a. Sabine, Cowp., 169; Shelling a. Farmer, Strange, 646.) There can be little doubt that those cases went upon the idea that no justice could be had in the colonies. They were generally against the viceroy. These viceroys claimed immunity from coercion by legal process. And, in a great degree, they had that immunity. (Hill a. Ran

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dall, 3 Moore's P. C. Cas., 465.) We have assigned another position to the anomalous case of Rafael a. Verelst; but it is doubtful whether it does not come under this head. Verelst was governor of an English factory in the East Indies, and his wrongful acts were committed by him officially as governor. Rafael a. Verelst (2 W. Blacks., 983, 1055, 1067) was trespass by an American against Verelst, president of Calcutta, and chief local civil officer of the East India Company, for an arrest and false imprisonment, committed within the territory of an independent sovereign prince of India. The action was sustained. The point of jurisdiction was faintly made by counsel, if at all; and it was but briefly noticed by the court (p. 1058). A writ of error was brought; but what became of it does not appear in the reports (2 W. Blacks., 1067; Cowp., 425). This is the only English decision which can fairly be said to affirm the jurisdiction. It was made in the year 1776; and, therefore, it is not authority in this State. This is believed to be the only case in which the English courts have ever sustained a stranger's action for a mere personal tort committed upon him in his own country. Rafael a. Verelst is also subject to an observation rendering it quite inapplicable to the general question now before the court. The tort was committed by a public servant of Great Britain, though not directly commissioned by the crown; and there was no legal tribunal, in the country where the tort was committed, having power or jurisdiction to redress it. Perhaps the government of Great Britain was bound by public law to give a remedy against its own official for any act of cruel oppression repugnant to natural right, and otherwise irremediable. This view of the case would place it on essentially the same ground as Fabrigas a. Mostyn. The courts of England also exercised criminal jurisdiction over government officials for acts of oppression in the colonies; and there seems no ground of policy to make a distinction against their civil jurisdiction. (Sir Thomas Picton's Case, 30 How. State Tr., 226-957; Mackenzie's Case, 5 Celebr. Tr., 115; London ed., 825.) The notion that mere personal torts are universally transitory, finds no countenance in the law. The only opinion of Lord Mansfield bearing upon the point, is adverse to it. In the same great case of Mostyn a. Fabrigas, decided in 1774, he says: "There may be some cases arising abroad which may not be fit to be tried

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here; but that cannot be the case of a governor injuring a man contrary to the duty of his office, and in violation of the trust reposed in him by the king's commission." (1 Smith's Lead. Cas., 355.) And he then expresses his doubt as to the right to import all private personal trespasses, committed on foreigners abroad, in their own country. He says: "If two persons fight in France, and both happening casually to be here, one should bring an action of assault against the other, it might be doubtful whether such an action could be maintained here." "It might perhaps be triable only where both parties at the time were subjects." Our venue statutes as late as 1830, seem to negative the idea that we have jurisdiction of foreign assaults and batteries, &c.

VIII. If this court has no jurisdiction of the case, or is bound in the exercise of a sound judicial discretion to decline it, the plaintiff's complaint should be dismissed. (Code, § 148, Voorhies' 5th ed., p. 161, and note on p. 162; 14 Johns., 137, 138; Dicas a. Brougham, 6 Car. & P., 392, 393.)

IX. This is precisely one of those cases in which the courts of this State ought to decline jurisdiction. 1. The case alleged is, that the defendant, conjointly with others, formed a treasonable insurrection against the authorities and government of the State of California; and, as a part of their hostilities, assaulted and imprisoned the plaintiff, and ultimately expelled him from the country. (Ex parte Bollman, 4 Cranch, 126, 127, 133, 135; 4 Wendell's Blackst., 82, §§ 3, 4.) 2. It is the settled policy of these States to abstain from all interference with such disturbances, arising within the borders of a foreign country. We would not deliver up to their justice defeated rebels seeking refuge in our territory, though stained with a thousand crimes; neither have we ever tolerated a private civil action against such persons for redress of the injuries they may have inflicted upon the persons or property of their countrymen during the contest. This policy will never be departed from, although it is obvious that under it a manifest failure of justice might often occur. (Bowyer's Pub. Law, 235.) 3. Such disturbances may occur in the States of this Union. It is said the reign of the first and second Vigilance Committees at San Francisco, in 1851 and 1856, were of this character. Shay's rebellion in Massachusetts, and Dorr's in Rhode Island, are also instances. (Luther