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obligations; whereas, on the other hand, a mere agreement in reference to property involves no question of equality of status, but only of the power of a State to deal with the Nation or with any other State in reference to such property. The case before us is one involving simply an agreement as to property between a State and the Nation. That a State and the Nation are competent to enter into an agreement of such a nature with one another has been affirmed in past decisions of this court, and that they have been frequently made in the admission of new States, as well as subsequently thereto, is a matter of history. We are of opinion that there was a valid contract made with these companies in respect to the taxation of these landsa contract which it was beyond the power of the State to impair; that this subsequent legislation does impair that contract and cannot, therefore, be sustained."

§ 116. Suits Between States.

This subject will be treated in connection with the Judicial Power of the United States.14

14 See chapter LIII.

CHAPTER XVI.

THE PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES: STATUS OF ALIENS.

§ 117. Territorial Sovereignty.

By international law and by the public law of all civilized States the legal jurisdiction of a State is generally recognized to extend over all persons for the time being within the districts under its de facto control. The only exceptions, if exceptions they be, are those coming within the principle of extraterritoriality. A State has jurisdiction over, not only its native-born and naturalized subjects, but all the subjects of other States permanently or, at any given time, temporarily resident, within its borders.

Nowhere, perhaps, has this general constitutional principle been better stated than by Marshall in the great case of The Exchange,1 decided in 1812. In the opinion rendered in this case, the Chief Justice, after pointing out that the jurisdiction of a State within its own territory is necessarily exclusive as well as absolute, goes to show that the exceptions to this principle, generally recognized in practice, are themselves founded upon the will of the State recognizing them. Thus the so-called doctrine of extraterritoriality, though often spoken of as a fiction, namely that the diplomatic representatives and their establishments, and public ships of war, are upon, or are parts of, the territory of the States to which they belong, is not a necessary fiction. Such immunity from local jurisdiction as exists is due to the consent of the local State. That is to say, it is by an exercise of the jurisdiction of that State that these persons are exempted from the operation, though entitled to the protection, of the local law.

§ 118. De Facto Control.

The authority of States over districts and their inhabitants temporarily subject to its de facto control, will be considered in 17 Cr. 116; 3 L. ed. 287.

another chapter. At this place it will be sufficient to quote the opinion in United States v. Rice2 in which, with reference to the status of the port of Castine, Maine, at the time it was in the possession of the British authorities during the War of 1812, the Supreme Court, speaking through Justice Story, said: "By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience."

Upon this same point, Chancellor Kent in his Commentaries says: "If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while abroad, and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered." And, he adds, there is no reason why the same principles should not apply to the United States.3

§ 119. Status of Aliens.

As regards the status of aliens, that is, subjects of other States, who are temporarily or permanently domiciled in a State, it may

24 Wh. 246; 4 L. ed. 562.

3 6th ed. II, 42.

be said that the fact that they are within the territorial limits makes them, in a broad constitutional sense, members of that State and, therefore, subject to the authority of its laws, though they still remain the subjects or citizens of their native States. In fact, being under the protection of the State where they are, they owe an allegiance to it according to the maxim protectio trahit subjectionem, et subjectio protectionem. Webster, when Secretary of State, in his report on Thrasher's Case in 1851, declared: "Independently of a residence with intention to continue such residence, independently of the taking of any oath of allegiance, or of renouncing any former allegiance, it is well known, that by the public law an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign gov ernment, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty speculations." This principle thus stated by Webster has been several times quoted and approved by the Supreme Court.5

§ 120. Double Allegiance.

There is no objection to predicating the existence of this double allegiance, for, despite the fact that modern sovereignty is generally spoken of as territorial, it is, in fact, personal, and imports a personal relationship between the sovereign political person the State and its political inferiors, its subjects. Sovereignty in truth is a purely legal concept and exists only within the field of constitutional law. International relations, the relations between States, are not legal in character, and international laws, so-called, are not laws at all in a strict positive sense. They are not commands from a legal superior to a legal inferior, but are regulations governing the conduct of political equals. Within this general international field the authority or jurisdiction of governments is strictly territorial-over each territorial district there 4 Webster's Works, VI, 526.

5 United States v. Carlisle, 16 Wall. 147; 21 L. ed. 426; United States v. Wong Kim Ark, 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

is a particular de facto government recognized by the various States to have a right based upon actual power, to exercise political control, and, correspondingly, is held by them responsible for whatever occurs within such districts. Internationally speaking, therefore, jurisdiction is territorial and exclusive. Over any given territory, one, and only one, governing body is recognized to have legitimate authority. But sovereignty, denoting, as said, legal supremacy, a personal relationship, as predicated upon a legal subjection or allegiance of individuals to a legal superior, is not territorial; and there is thus no inherent difficulty in a sovereign claiming legal authority over individuals located outside of the limits of the territory conceded by other nations to belong to it; or of two or more States claiming at the same time, under the operation of their respective municipal laws, the allegiance of the same individual, as for instance, as we shall presently see, when one State naturalizes the subject of a State whose municipal law does not recognize the right of expatriation.

From the viewpoint of international relations, as we have just seen, the law of one State is not permitted by other States to operate outside of the territorial limits of the State which promulgates it, and, therefore, though claiming a legal authority over an individual outside of such limits, a State will not be permitted by other States to exercise it against the consent of the State within whose limits the individual is situated. But that does not render impossible the existence of or invalidate such a claim, for when, if ever, such an individual is apprehended within the territory of the State claiming authority over him he may be held responsible for acts committed while abroad. And also, as still more plainly showing the personal and non-territorial character of allegiance and sovereignty is the principle universally recognized both in municipal and international law, that a citizen of a State is in many cases entitled to the protection of that State while abroad. Thus he does not in any way lose his citizenship by departing from the territorial limits of the State of which he is a member, nor does he escape from beneath its law or cease to be entitled to its protection.

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