tion of each, in the enactment of statutes by which offences committed by a subject or citizen, within the territorial limits of a foreign State, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey." Mr. Wheaton does not here notice the provision of the Federal Constitution which guarantees to each accused party a trial in the State and district where the crime was committed. But it is easy to reconcile his statement as above given with this provision, by adopting the view of the Federal Supreme Court, that the Constitution has application only to offences committed on the soil of the United States.2

ment of

eignty

between federal

§ 272. With regard to the particular States of the American Union, complicated constitutional questions may here Apportion- arise. Is a domiciled citizen of Massachusetts, for inthis sover- stance, when travelling abroad, responsible, on the general hypothesis of extra-territorial penal power of and State Sovereigns over subjects abroad, to the United States, or to Massachusetts, or to both? The better opinion is that he is responsible to them penally, when he is abroad, under the same conditions and limitations as he was when he was at home. For an infringement of the laws of Massachusetts, he is responsible to Massachusetts; for an infringement of the laws of the United States, to the United States.

governments.

United States statutes

§ 273. By the Revised Statutes the ministers and consuls of the United States, in pursuance of treaties with China, Japan, Siam, Egypt, and Madagascar, are "fully empowered to arraign and try, in the manner herein provided, all citizens of the United States charged with offences against law, committed in such countries." By a subsequent ized lands. section the same jurisdiction is extended to "consuls and commercial agents of the United States at islands or in

give jurisdiction over of

fences in

semi-civil

1 Dana's Wheaton, 113. That a extra-territorial jurisdiction, Tyler v. foreigner enlisted in United States People, 8 Mich. 320, 1860; State v. navy is subject to United States criminal laws, see Ross v. McIntyre, 11 Sup. Ct. Rep. 897, 1891.

Knights, 2 Hayw. 109, 1815; and as inclining to the same view, see People v. Merrill, 2 Parker C. R. 590, 1854;

2 U. S. v. Dawson, 15 How. (U. S.) Cummins v. State, 12 Tex. App. 121, 467, 1853. 1882. For bigamy, see infra, 1685-1698.

3 Com. v. Macloon, 101 Mass. 1, 1869; Com. v. Gaines, 2 Va. Cas. 172, 1819; State v. Carter, 3 Dutcher, 501, 1859; State v. Main, 16 Wis. 398, 1864; though see, as denying state

Ed. of 1878, 4084. But as to Japan, see treaty of 1895.

5 See In re Stubbs, 11 Blatch. 124, 1873.

countries not inhabited by any civilized people, or recognized by any treaty with the United States." This, it will be seen, is a positive claim of the United States government to exercise extraterritorial jurisdiction over its own citizens in uncivilized countries, independent of any treaty authorization. The jurisdiction, however, is limited to persons owing allegiance to the United States.2 A similar jurisdiction is asserted by both German and French jurists over their subjects in barbarous or semi-civilized lands,3 and it is now, partly by treaty, partly as a matter of international law, partly because in semi-civilized lands the domestic authorities generally refuse to take cognizance of suits in which foreigners are concerned, a settled practice for civilized consular jurisdiction, in matters both criminal and civil, to be exercised not only in Asia and Africa but in Turkey.*

Also over

abroad.

§ 274. The act of January 30, 1790, provides that if any "citizen of the United States, whether he be actually resident or abiding within the United States, or in any foreign political country, shall without the permission or authority of the offences government of the United States, directly or indirectly commence or carry on any verbal or written correspondence or intercourse with any foreign government, or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign government, or of any officer or agent thereof, in relation to any disputes or controversies with the United States, he shall be guilty of a high misdemeanor, and subjected to a fine not exceeding five thousand dollars, and imprisonment for not less than six months or over three years. This act still remains among the statutes of the United States; and its continued existence is the strongest of illustrations that the power of Congress to "define and punish offences against the law of nations" is maintained by the government of the United States to authorize it to punish at home political offences committed by its citizens abroad.

The Act of February 25, 1863,

1 Rev. Stat. 4088.

making correspondence with

nally at Shanghai in "Her Majesty's

2 See 11 Op. Atty.-Gen. 474. As to Court for China and Japan." bigamy, see infra, 2? 1685–1696.

'Whart Conf. of Laws, 866; Fœlix, ii. p. 294. See Bar, ? 138.

See Whart. Com. Am. Law, ?? 147, 171. In Hart v. Gumpach, L. R. 4 P. C. 439, the suit was brought origiVOL. I.-19

5

Brightly, p. 201; Rev. Stat. 1878, 5335. See President's Message of Dec. 3, 1798; Mr. Jefferson to Mr. Madison, Jan. 3, 1799; Randall's Life of Jefferson, iii. p. 467.

6 Brightly, Fed. Stat. ii. 154.

289

rebels a misdemeanor, declares that "where the offence is committed in a foreign country, the District Court of the United States for the district where the offender shall be first arrested shall have jurisdiction thereof."

Political

extra-ter

2

§ 275. By the English law, all offences by subjects against the government are cognizable by English courts, no matter where the defendant may have been resident at the time of the offence,' and by the jurists of continental Europe this view is accepted as universally authoritative. Nor does it exclude the jurisdiction ritorial of of the offended State, that a foreign country, within whose bounds the offence was organized, had concurrent jurisdiction of the offence. It is a fundamental principle of international law that each State is primarily authorized to punish offences against itself. Of course, it cannot invade the territory or the ships of another country in order to arrest the offender. But the arrest may be made whenever the offender is found in the territory of the offended sovereign.

fences by subjects

are punishable.

Perjury and forgery before consular

agents

abroad

punish

able in the

§ 276. The Act of Congress of August 18, 1856, authorizes secretaries of legation and consular officers to administer oaths and perform notarial duties, and makes perjury or subornation of perjury abroad before such officers punishable "in any district of the United States, in the same manner, in all respects, as if such offence had been committed in the United States.' This act is not confined to persons owing allegiance to the United States, but includes aliens committing the designated offences. The same act makes makes penal the forgery abroad of consular papers. And at common law it is argued that a State may punish perjury committed before one of its own commissioners to take testimony in a foreign State.5

home courts.

The same view is taken by German and French jurists. In England, in indictments for administering or taking unlawful

1 Wendell's Blackstone, iv. p. 305; R. v. Azzopardi, 1 C. & K. 203, 1843; R. v. Anderson, 11 Cox C. C. 198, 1869; L. R. 1 C. C. 161. Infra, 276, 284. See Sir Geo. Cornwall Lewis's work on Foreign Jurisdiction, etc. p. 20. As to bigamy, see infra, ?? 1685, 1696.

2 Bar, p. 530, 138; Ortolan, No. 880. See this discussed in the Kozta

Case, and Trent Case, in Woolsey, ? 81; Whart. Com. Am. Law, 139, 146, 239.

Brightly, 180. See Rev. Stat. U. S. 1878, 4083-4130.

5 See Phillipi v. Bowen, 2 Pa. 20, 1845; Com. v. Kunzemann, 41 Pa. 429, 1861. Infra, & 1264.

6

Infra, 284. See Whart. Conf. of Laws, 874.

oaths, the venue may be laid in any county in the realm, though the offence was committed abroad.' In indictments for forgery, the venue may be laid, and the offence charged to have been committed in any county where the offender was apprehended or in custody."

Homicide

§ 277. In England, in indictments for murder or manslaughter, or for being accessary before or after the fact to murder or manslaughter, the offence being committed by a British subject on land out of the United Kingdom, the venue may by statute be laid in any county appointed by the Lord Chancellor by subjects in the commission issued for the trial of the offender.3 abroad This provision applies to homicides committed by British able in subjects within the dominions of a foreign sovereign ;* but, until afterward amended, not to offences by foreigners, though committed on Englishmen, and on board English ships.5

3. Liability of Extra-territorial Principal.

punish

England.

ritorial

may be in

trially in

§ 278. Cases can easily be conceived in which a person, whose residence is outside a territory, may make himself, by conspiring extra-territorially to defeat its laws, intra-ter- Extra-territorially responsible. If a forger, for instance, should principal establish on the Mexican side of the boundary between tra-territhe United States and Mexico a manufactory for the forgery of United States securities, for us to hold that when the mischief is done he would not be liable to arrest on extradition process, and that he could afterward take up with impunity his residence in the United States, would not merely expose us to spoliation, but bring our government into contempt.

dicted.

To reply that in such case the Mexican government can be relied upon to punish, is no answer: because, first, in countries of such imperfect civilization penal justice is uncertain; secondly, because Mexico may hold that we have jurisdiction, and that, therefore, she will not exert it; thirdly, because in cases where, in such countries, the local community gains greatly by the fraud, and suffers by it no loss, the chances of conviction and punishment would be slight; and, fourthly, because all that the offender would have to do to escape 137 Geo. III. c. 123, 6; 52 Geo. 198, 1869. See R. v. Mattos, 7 C. & III. c. 104, 8 7. P. 458, 1836.

21 Will. IV. c. 66, ? 44.

39 Geo. IV. c. 31, 7.

4

R. v. Sawyer, R. & R. C. C. 294, 1818; R. v. Azzopardi, 1 C. & K. 203, 1843; R. v. Anderson, 11 Cox C. C.

5 R. v. Depardo, 1 Taunt. 26, 1808; R. & R. C. C. 134; R. v. Mattos, ut supra. See article in London Law Magazine for 1868, p. 124. For subsequent statute, see supra, ? 269.

justice in such a case would be to walk over the boundary line into the United States, where on this hypothesis he would go free. In political offences there is this consideration to be added, that it is now an accepted doctrine of international law that no government will punish a refugee for treason against a sovereign;' and hence a government, on the hypothesis here disputed, would have no redress for offences directed abroad by refugees against its sovereignty, even though the offenders were its own subjects, and should, after the commission of the offence, return to its soil.

Principal responsi

ble for ex

tra-terri

3

§ 279. A party who in one jurisdiction puts in operation a force which does harm in another jurisdiction, is responsible in both jurisdictions for the harm. That he is responsible in the place where he starts the wrong will be hereafter torial acts. seen. His responsibility in the place where the wrong takes effect is also generally recognized. Thus, it has been held that the originator of a nuisance to a stream in one country, which affects such stream in another country, is liable to prosecution in the latter country; that the author of a libel uttered by him in one country and published by others in another country, from which he is absent at the time, is triable in the latter country that such is also the case when a man in one country incites an agent in another country to commit perjury; that he who on one side of a boundary shoots a person on the other side, is amenable in the country where the blow is received; that he who in one State employs an innocent 1 Whart. Conf. of Laws, 22 876, 910. 2 Supra, 248, 284, note; infra, ?? 287, 1207. See Whart. Conf. of Laws, ?? 877-921; Whart. Cr. Ev. 8 112; Wooton v. Miller, 7 Sm. & M. 380, 1846; State v. Chapin, 17 Ark. 561, 1856; Hanks v. State, 13 Tex. App. 289, 1882; Hatfield v. Com., (Ky.) 12 S. W. Rep. 309, 1890; accepting views of text. See infra, ?? 287, 288, as to responsibility in the place of starting the offence.

In Indiana a statute making a foreign principal punishable for his agent's criminal acts within the State, has been held to apply only to persons who are principals in the commission of the offence. Johns v. State, 19 Ind. 421, 1862.

3 Infra, 28 287 et seq.

Stillman v. White Rock Co., 3 Wood. & M. 538, 1849; State v. Smith, 82 Iowa, 423, 1891. See R. v. Burdett, 4 B. & Ald. 95 at p. 175, 176, 1821; Bulwer's Case, 7 Co. 2 b, 3 b; Com. Dig. Action, N. 3, 11. That the place of originating nuisance has jurisdiction, see infra, & 288.

R. v. Johnson, 7 East, 65, 1806; Com. v. Blanding, 3 Pick. 304, 1823. That place of mailing also has jurisdiction, see infra, ¿¿ 287, 288.

6 Com. v. Smith, 11 Allen, 243, 1866.

7 1 Hale P. C. 475; U. S. v. Davies, 2 Sumn. 482, 1838; cited and approved in State v. Wyckoff, 2 Vroom, (N. J.) 68, 1864, and the same point taken in Com. v. Macloon, 101 Mass. 1, 1869. And the person who fires