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is only by agents that corporations can act, it is not necessary to prove, on charging a corporation with a criminal act committed by an agent, within his range of duty, that this act was specifically authorized by the corporation.'

(c) When the Principal resides out of the Jurisdiction. $ 248. When the principal resided out of the jurisdic- Non-resition in which the offence was consummated he is charge- dent prinable in such place of consummation, notwithstanding his tra-terrinon-residence.?

torially liable.

VI. MISPRISION.

1405.

$ 249. At common law a party is guilty of misprision of felony who stands by the commission of the felony without en

Misprision deavori ng to prevent it, and who, knowing of its commis- of felony is sion, neglects to prosecute the offender. Misprision, as ment of

felony. a substantive offence, however, is practically obsolete. The sa me end, so far as is consistent with the general policy of society, is reached by the rule noticed in another work, which makes it incumbent on all persons present when an unlawful act is attempted to take part with the officers of the law in the prevention of such act. James, 63 Mo. 570, 1876. As to lia- has committed high treason, and does bility for co-conspirators, see infra, & not within a reasonable time give in

That a principal, who leaves formation thereof to a justice of assize the performance of his official duties or a justice of the peace, is guilty of to a subaltern, is indictable for the misprision of treason, and must, upon subaltern's failure to perform an offi- conviction thereof, be sentenced to cial duty, see U. S. 0. Buchanan, 4 imprisonment for life, and to forfeit Hughes, 487; 9 Fed. Rep. 689, 1881; to the queen all his goods and the

Beaty, Hemp. 487, 1848. profits of his lands during his life.” Supra, 91; R. 0. Medley, 6 C. & Art. 175 (5th ed.): “Every one who P. 292, 1834; infra, 22 1422, 1423, 1425. knows that any other person

has comSee infra, a 279, 280, 287 ; R. v. mitted felony and conceals or procures Garrett, 22 Law & Eq. 607; '6 Cox the concealment thereof, is guilty of C. C. 260, 1854; U. S. v. Davis

, 2 misprision of felony." As to the punSumn. 482, 1837; Com. v. Pettes, 114 ishment for misprision of felony in Mass. 307, 1873; People v. Adams, 3 England, see Stephen's Dig. Crim. Denio, 190, 1847'; Adams v. People, 1 Law (5th ed.), art. 18. Comst, 173, 1848 ; Com. v. Gillespie, 7

4 See Whart. Cr. Pl. & Pr. ?? 10 et S. & R. 469, 1821.

seq. As to misprision of treason, see · Hawk. P. C. b. 1, c. 59, s. 2; 1 U. S. v. Burr, 4 Cranch, 470, 1808;

infra, 3% 1782 et seq. By Rev. Stat. According to Sir J.F. Stephen, Dig. U. S. 32 5333, 5390, misprision of Crim. Law, art. 174 (5th ed.), “Every treason and misprision of felony are one who knows that any other person made specifically indictable.

U.S. v.

Hale P. C. 431-448.

CHAPTER X.

IN WHAT COURTS INDICTMENTS ARE COGNIZABLE.

I. JUDICIAL POWERS SETTLED BY Federal courts have statutory FEDERAL CONSTITUTION.

power of habeas corpus in fedSummary of federal judicial pow- eral cases, % 268.

ers given by Constitution, 252. IV. CONFLICT AND CONCURRENCE OF Prevalent view is that federal ju- JURISDICTIONS.

diciary has no common law 1. Offences at Sea.

criminal jurisdiction, % 253. Offences at sea cognizable in Conflict of early rulings on this country of flag, & 269. topic, & 254.

Federal courts have jurisdiction Rulings do not shut out common of crimes on high seas out of

law as a standard of interpreta- State jurisdiction, $ 270.
tion, & 255.

Sovereign has jurisdiction of sea No formal jurisdiction is given of within cannon-shot from shore,

exclusively common law of- % 270 a.
fences, 8 256.

2. Offences by Subjects abroad. Statutory jurisdiction of federal Subjects may be responsible to courts, % 257.

their own sovereign for offences Includes offences against law of abroad, & 271. nations, % 258.

Apportionment of this sovereignty Also offences against federal sov- between Federal and State gove ereignty, 259.

ernments, & 272. Also offences against individuals Offences in semi-civilized lands, on federal soil or on ship, % 260.

273. Also offences against property of Also over political offences abroad, federal government, % 261.

& 274. Also against public federal jus- Political extra-territorial offences tice, 2262.

by subjects are punishable, 275. II. IN WHAT COURTS OFFENCES Perjury and forgery before consu

AGAINST FEDERAL GOVERN- lar agents punishable at home,
MENT ARE TO BE TRIED.

2 276. State courts have not concurrent Homicide by subjects abroad pun

jurisdiction unless given by ishable in England, & 277.
statute, % 264.

3. Liability of Extra-territorial PrinConflict of opinion as to State

cipal. jurisdiction, 265.

Extra-territorial principal may As to offences distinctively against be intra-territorially indictable, U. S. the States are indepen

278. dent sovereigns, & 266.

Principal responsible for extraIII. CONFLICT AS TO HABEAS CORPUS. territorial acts, % 279.

Right of the courts to discharge Doubts in cases where agent is from federal arrests, % 267.

independently liable, 2 280.

as

4. Offences by Aliens in Country of

Arrest.
Aliens indictable in country of

arrest by Roman Law, 281.
So in English and American law,

282.
So as to Indians, & 282 a.
But not so

to belligerents,
2 283.
5. Offences by Aliens abroad.
Extra-territorial offences against

our rights may be intra-terri

torially indictable, % 284. Jurisdiction claimed in cases of

perjury and forgery before con

suls, 285. Punishment in such cases, % 286. 6. Offences committed part in one Ju

risdiction and part in another.
Accessaries and co-conspirators

indictable in place of accessary-
ship or conspiracy and of per-
formance, & 287.

In continuous offences each place

of overt act has cognizance,

2 288. Adjustment of punishment in

such cases, % 289. Offences in carriages and boats,

% 290. In larceny, thief liable wherever

goods are brought, & 291. In homicide, place of wound has

cognizance, and by statute place

of death, % 292. Law of place of performance de

termines indictability, % 292 a. Sovereigns may have concurrent

or successive jurisdiction, & 293. 7. Courts Martial and Military

Courts.
Martial law is law for the army,

military law is law imposed on

a subjugated country, 294. Judgments of, may be a bar, ? 295.

Constitu

I. JUDICIAL POWERS SETTLED BY FEDERAL CONSTITUTION. $ 252. The powers given to Congress under this head are : To provide for the punishment of counterfeiting the

Summary securities and current coin of the United States.

of federal

judicial To define and punish piracies, felonies committed on powers

given by the high seas, and offences against the law of nations.?

To make rules for the government and regulating of tion. the land and naval forces.

To provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States.

To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat

government of the United States; and to exercise like

over all places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings ;"

of the authority

"Art. 1, 88, cl. 6.

Ibid. cl. 10. • Ibid. cl. 14.

4 Ibid. cl. 16.
5 Ibid. cl. 17.

See infra, 260,

n. 8.

Prevalent view is that fed

no com

powers.

by the

and to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States.'

To enforce the rights established by the fourteenth and fifteenth amendments. $ 253. It is said in a case which will presently be more fully

noticed, and which is assumed to have settled the law on

this important question, that although it may be that the eral judi- Supreme Court possesses jurisdiction derived immediately ciary has

from the Constitution, of which the legislative power mon law cannot deprive it, all other courts created by the general

government possess no jurisdiction but what is given them

power that creates them, and can be invested with none but what the power ceded to the general government authorizes Congress to confer. Certain implied powers, it is admitted, must necessarily result to courts of justice from the nature of their institution : as to fine for contempt, to imprison for contumacy, and to enforce obedience to orders; but jurisdiction of crimes against the federal government, it is held, is not among these powers. Before an offence can become cognizable by the United States courts, so it is concluded, Congress must first recognize it as such, affix a punishment to it, and declare the court that shall have jurisdiction.3 $ 254. The first case which involved the question of the common

law criminal jurisdiction of the federal courts was that early rul- of Henfield, tried for illegally enlisting in a French ings in this privateer; a case tried in 1793, but for the first time

fully reported in 1850. In this case Chief Justice Jay, Judge Wilson, and Judge Iredell, of the Supreme Court, and Judge Peters of the District Court, concurred in holding that all viola

Conflict of

1 Ibid. cl. 18. In this section the v. State of Maryland, 4 Wheat. 413, word necessary has been construed to 1819; U. S. v. Bevans, 3 Wheat, 336, mean needful, requisite, essential, and 1818; Martin's Lessee v. Hunter, 1 conducive to, and gives Congress the Wheat. 304, 1816; Ex parte Bollman, choice of the means best calculated to 4 Cranch, 75, 1807; U. S. v. Fisher, 2 exercise the powers they possess; and Cranch, 358, 396, 1804. under this construction it has been ? Whart. Com. Am. Law, ?2 591 et held that Congress has power to in- seq. flict punishment in cases not specified 3 U.S. v. Hudson and Goodwin, 7 by the Constitution, such power being Cranch, 32, 1810; U. S. v. Coolidge, 1 implied as necessary and proper to the Wheat. 416, 1816. See Duponceau on sanction of the laws and the exercise Jurisdiction of United States Courts. of the delegated powers. M'Culloch 4 Whart. State Trials, 49.

tions of treaties, of the law of nations, and of the common law, so far as federal sovereignty is concerned, are indictable in the federal courts without statute. Almost at the same time before Judge Iredell, Judge Wilson, and Judge Peters, an American citizen was convicted, at common law, for sending a threatening letter to the British Minister. Then came Isaac Williams's case, where the same law was held by Chief Justice Ellsworth.”

Such was the state of the law when Judge Chase, in Worrall's case (Chief Justice Jay, Judge Wilson, and Judge Iredell being no longer on the bench, and Chief Justice Ellsworth being abroad), without waiting to learn what had been decided by his predecessors, startled both his colleague and the bar by announcing that he would entertain no indictment at common law. No reports being then, or for some time afterward, published, of the prior rulings to the contrary, it is not to be wondered that the judges who came on the bench after Judge Chase supposed that he stated the practice correctly. In this view Judge Washington seems to have held that there could be no indictment for perjury at common law in the courts of the United States; and Chief Justice Marshall, in more than one case, treats the same point as if settled by consent. But in a case which occurred in the Circuit Court of Massachusetts in 1813, on an indictment for an offence committed on the high seas, the question arose whether the Circuit Court had jurisdiction to try offences against the United States which had not been defined, and to which no punishment had been affixed. Judge Story, admitting that the courts of the United States were of limited jurisdiction, and could exercise no authority not expressly granted to them, contended that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law. The inference, he urged, was plain, that the Circuit Courts have cognizance of all offences against the United States; that what these offences were depended upon the common law, applied to the powers confided to the United States ; that the Circuit Courts, U.S. v. Ravara, Whart. State Tr. 5 U. S. v. Burr, 4 Cranch, 500, 1793.

1808. Whart. State Trials, 651.

6 U. S. v. Bevans, 3 Wheat. 336, : Whart. State Trials, 189.

1818; U. S. v. Wiltberger, 5 Wheat. * See i W.C.C. R. 84, 1804, the re- 76, 1820. port of which case appears to be de- ? U. S. v. Coolidge, 1 Gall. 488, fective in the conclusion of Judge 1814.

91; 2 Dallas, 297,

2

Washington's opinion.

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