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 principal inable in such place of consummation, notwithstanding his tra-territorially non-residence.2 liable.

VI. MISPRISION.

Misprision

of felony is

conceal

ment of felony.

§ 249. At common law a party is guilty of misprision of felony who stands by the commission of the felony without endeavoring to prevent it, and who, knowing of its commission, neglects to prosecute the offender.3 Misprision, as a substantive offence, however, is practically obsolete. The same 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 liability for co-conspirators, see infra, & 1405. That a principal, who leaves the performance of his official duties to a subaltern, is indictable for the subaltern's failure to perform an official duty, see U. S. v. Buchanan, 4 Hughes, 487; 9 Fed. Rep. 689, 1881; U. S. v. Beaty, Hemp. 487, 1848.

1

Supra, 91; R. v. Medley, 6 C. & P. 292, 1834; infra, ?? 1422, 1423, 1425. 1 See infra, ?? 279, 280, 287; R. v. Garrett, 22 Law & Eq. 607; 6 Cox C. C. 260, 1854; U. S. v. Davis, 2 Sumn. 482, 1837; Com. v. Pettes, 114 Mass. 307, 1873; People v. Adams, 3 Denio, 190, 1847; Adams v. People, 1 Comst. 173, 1848; Com. v. Gillespie, 7

S. & R. 469, 1821.

has committed high treason, and does not within a reasonable time give information thereof to a justice of assize or a justice of the peace, is guilty of misprision of treason, and must, upon conviction thereof, be sentenced to imprisonment for life, and to forfeit to the queen all his goods and the profits of his lands during his life."

Art. 175 (5th ed.): "Every one who knows that any other person has committed felony and conceals or procures the concealment thereof, is guilty of misprision of felony." As to the punishment for misprision of felony in England, see Stephen's Dig. Crim. Law (5th ed.), art. 18.

4 See Whart. Cr. Pl. & Pr. 28 10 et 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; Hale P. C. 431-448.

infra, 1782 et seq. By Rev. Stat. According to Sir J. F. Stephen, Dig. U. S. 22 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.

CHAPTER X.

IN WHAT COURTS INDICTMENTS ARE COGNIZABLE.

I. JUDICIAL POWERS SETTLED BY
FEDERAL CONSTITUTION.
Summary of federal judicial pow-
ers given by Constitution, & 252. IV.
Prevalent view is that federal ju-
diciary has no common law
criminal jurisdiction, ? 253.
Conflict of early rulings on this

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 as to belligerents,
? 283.

5. Offences by Aliens abroad.

Extra-territorial offences against our rights may be intra-territorially indictable, ? 284. Jurisdiction claimed in cases of perjury and forgery before consuls, 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 accessaryship or conspiracy and of performance, 287.

In continuous offences each place
of overt act has cognizance,
? 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 determines 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.

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. i

To define and punish piracies, felonies committed on the high seas, and offences against the law of nations.2 To make rules for the government and regulating of the land and naval forces.3

of federal judicial powers given by Constitu

tion.

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.1

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 of the government of the United States; and to exercise like authority 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 ;5

1 Art. 1, 8, cl. 6.

2 Ibid. cl. 10.

Ibid. cl. 14.

Ibid. cl. 16.

5 Ibid. cl. 17. See infra, 260,

n. 8.

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.1 To enforce the rights established by the fourteenth and fifteenth amendments.2

Prevalent

view is that fed

ciary has

no common law powers.

§ 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 from the Constitution, of which the legislative power cannot deprive it, all other courts created by the general government possess no jurisdiction but what is given them by the 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 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 early rul

relation.

1819; U. S. v. Bevans, 3 Wheat. 336, 1818; Martin's Lessee v. Hunter, 1 Wheat. 304, 1816; Ex parte Bollman, 4 Cranch, 75, 1807; U. S. v. Fisher, 2 Cranch, 358, 396, 1804.

1 Ibid. cl. 18. In this section the v. State of Maryland, 4 Wheat. 413, word necessary has been construed to mean needful, requisite, essential, and conducive to, and gives Congress the choice of the means best calculated to exercise the powers they possess; and under this construction it has been held that Congress has power to inflict punishment in cases not specified by the Constitution, such power being implied as necessary and proper to the sanction of the laws and the exercise of the delegated powers. M'Culloch

2 Whart. Com. Am. Law, 22 591 et seq.

U. S. v. Hudson and Goodwin, 7 Cranch, 32, 1810; U. S. v. Coolidge, 1 Wheat. 416, 1816. See Duponceau on Jurisdiction of United States Courts. Whart. State Trials, 49.

4

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.2

5

Such was the state of the law when Judge Chase, in Worrall's case3 (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,

1 U. S. v. Ravara, Whart. State Tr.

91; 2 Dallas, 297, 1793.

2 Whart. State Trials, 651. Whart. State Trials, 189.

5 U. S. v. Burr, 4 Cranch, 500, 1808.

U. S. v. Bevans, 3 Wheat. 336, 1818; U. S. v. Wiltberger, 5 Wheat.

7 U. S. v. Coolidge, 1 Gall. 488,

See 1 W. C. C. R. 84, 1804, the re- 76, 1820. port of which case appears to be defective in the conclusion of Judge 1814. Washington's opinion.