agent to obtain goods by false pretences in another State, is amenable in the latter State; that the forger in one State of a title to land in another State, may be punished in the latter State; that a thief who sends goods by another person, not an accomplice in the theft, to a foreign State for sale, is indictable in the latter State; that he who sells through agents, guilty or innocent, lottery tickets in another State, is amenable in the State of the sale, though he was absent from such State personally; that he who gives poison in one jurisdiction which operates in another is responsible in the latter jurisdiction, and so is a person who in one county advises another, the shot cannot be tried in the State demeanor, the better opinion is that from which the shot was fired, though the country of the starting and the both he and the person shot are citi- country of the consummation of a zens of that State. State v. Hall, (N. crime have each jurisdiction in cases C.) 19 S. E. Rep. 602, 1892. See as to where there is a substantive offence in U.S. v. Davis, infra, ? 288.

1

2

each. Thus where the instruments People v. Adams, 3 Denio, 190, for the commission of a homicide are 1846; aff. 1 Comst. 173, 1848, and au- prepared in England to be applied in thorities cited infra, 280. S. P. held France, England as well as France in R. v. Garrett, 6 Cox C. C. 260, has jurisdiction of the conspiracy; 1854, infra, where Lord Campbell and so the country of the sending of affirmed the principle, but ruled an libels and of noxious compounds has acquittal on other grounds. "The jurisdiction as well as the country of rule," said Chief Justice Beasley, of receiving. Infra, ?? 287, 288, 292. New Jersey, in 1864, (State v. Wyck- Lindsay v. State, 38 Ohio St. 507, off, 2 Vroom, 69), appears to be 1882; Hanks v. State, 13 Tex. App. firmly established, and upon very 289, 1882. See Ex parte Carr, 28 satisfactory grounds, that where the Kans. 1, 1882. crime is committed by a person absent from the country in which the act is done, through the means of a * Com. v. Gillespie, 7 S. & R. 469, merely material agency, or by a sen- 1821. Under the statutes of the tient agent who is innocent, in such United States punishing the sending cases the offender is punishable where and delivering of lottery matter the act is done. The law implies a through the mails (act of Sept. 19, constructive presence from the neces- 1890,) the offence of "delivering" is sity of the case; otherwise the anomaly consummated where matter received, would exist of a crime but no respon- and therefore a citizen of New York sible criminal." This view, as will sending such matter through the be seen in a succeeding section, is mails to a citizen of Illinois may be sustained in several other States, tried in Illinois. U. S. v. Horner, 44 though dissented from in Connecti- Fed. Rep. 677, 1891.

3 Com. v. White, 123 Mass. 430, 1877.

cut. Com. v. Grady, 34 Conn. 119, 5 The overt act of homicide by ad1866; infra, & 280. Stripping the ministering poison within the meanquestion of the artificial complica- ing of the law, consists not simply in tions arising from the common law prescribing or furnishing the poison, distinction between felony and mis- but also in directing and causing it to

by signals, when to commit a highway robbery in another county; and that though an accessary before the fact is amenable in the place of accessaryship,2 he may become, if directing the execution of the act, amenable in the place of consummation. In a case of obtaining money by false pretences in England, the offender being at the time in Russia, this absence was in itself held to be no ground for acquittal; and Lord Campbell, sustained by Baron Parke, declared "that a person may, by the employment as well of a conscious as of an unconscious agent, render himself amenable to the law of England when he comes within the jurisdiction of our courts;" Baron Parke saying that "a person, though personally abroad, might commit a crime in England, and be afterward punished here; as, for instance, if he, by a third party, send poisoned food to one in England, meaning to kill him, he would be guilty of murder, if death ensued, although he could not be amenable to justice till he was personally within the jurisdiction." "It was a monstrous thing," Sir R. Phillimore is reported as saying at a meeting of the Law Amendment Society, in 1868, "that any technical rule of venue should prevent justice from being done in this country on a criminal for an offence which was perpetrated here, but the execution of which was concocted in another country." Hence we may hold that presence at the crime is not an essential condition of indictability.5

be taken; so that if the poison be pre- in Nye County, Nevada; that H. was scribed and furnished in one county to ascertain when the treasure left to a person who carried it into another Eureka, and signal his confederates by county, and there, under the direc- a fire on the top of a mountain in tions given, takes and becomes poisoned, and dies of the poison, the administering is consummated, and the crime committed, if committed at all, in the county where the person is poisoned. Robbins v. State, 8 Ohio St. 131, 1858.

It makes no difference that the party implicated never was in the State where the offence was committed. Lindsay v. State, 38 Ohio St. 507, 1882.

1 State v. Hamilton, 13 Nev. 386, 1878. In this case it was proved that there was a conspiracy between the defendants and others to rob the treasure of Wells, Fargo & Co., on the road between Eureka and some point

Eureka County, which could be seen by them in Nye County, thirty or forty miles distant; that the signals were given by him, and his confederates attacked the stage and attempted to rob the treasure. It was held that H. was a principal.

2 Infra, & 287.

3

Supra, 225; State v. Ayers, 8 Baxt. 96, 1874.

R. v. Garrett, 6 Cox C. C. 260, 1854; s. c. Dears. 232; and see R. v. Jones, 4 Cox C. C. 198; 1 Den. C. C. 551, 1849.

5 Com. v. White, 123 Mass. 430, 1877; S. P., R. v. Manley, 1 Cox C. C. 104, 1845; R. v. Ball, 1 Cox C. C. 281, 1845.

2

where

depend

§ 280. Some doubt, however, has been expressed as to whether, when the agent who thus intra-territorially consummates Doubts in the guilty act is personally responsible, the principal who cases extra-territorially plans it is intra-territorially liable in agent is incases of felony, he being absent from the jurisdiction at ently the time of the commission of the offence. That a foreign liable. instigator is so liable is expressly denied by the Supreme Court of New Jersey,' in a case in which it was ruled that unless the agent was innocent, so as to be a mere tool, the party employing him could not be regarded as a principal; and that if such employing party were simply an accessary before the fact, absent from the State at the principal offence, he could not, by the common law, be tried in New Jersey. The same view has been maintained as to felonies, in New Hampshire, North Carolina, and Arkansas, though it is conceded that by statute the accessary may be made triable in the place of the overt act." It is to be noticed, however, that this view, growing from the distinction between an innocent and a guilty agent in case of felony, is purely technical, based on an arbitrary fiction of the old common law relating to felonies alone, and not touching the question of general jurisdiction. Thus, in treason and misdemeanors, in which all concerned are principals, and in which, therefore, the rule that an accessary can only be tried in the place where he is accessary, if there be such a rule, does not obtain, all parties concerned are liable to punishment in any country where an overt act is performed. This is expressly ruled as to treason; and in misdemeanors the result is demonstrable, as it is in those States in which all accessaries before the fact are by statute principals. If, in such cases, the extra-territorial offender acts through an innocent agent, he is on all sides regarded as intra-territorially liable. If he acts through a guilty agent, he is indictable for conspiracy, when jurisdiction vests in any country in which an overt act is performed;7 or, on the same reasoning, he may be so indicted as principal in misdemeanor, or as inciter, when the offence in any of its aspects is a

in Lindsay v.

1882.

State, 38 Ohio St. 507,

7

Infra, 287, 1397. See this distinction well stated in State v. Chapin, 17 Ark. 561, 1856. See, also, R. v. State v. Knight, 1 Taylor, (N. C.) Johnson, 6 East R. 583, 1805; Johns 65, 1799. See Ex parte Smith, 6 Law v. State, 19 Ind. 421, 1862; State v.

'State v.

Moore, 6 Fost. 448, 1854.

Rep. 57,1846.

Hamilton, 13 Nev. 386, 1878; infra,

Stater. Chapin, 17 Ark. 561, 1856. 247.

misdemeanor. Even as to felonies, the rule that the absent accessary before the fact may be indicted in the country of the commission, where the principal is responsible, has been explicitly affirmed in Connecticut,2 and is good in all those States in which accessaries are by statute principals. But the assertion of such jurisdiction in the place of consummation in no way impairs the jurisdiction of the place of accessaryship over the accessary.

It is conceded that to secure the trial of a subject in a foreign land the offended sovereign must obtain possession of the person of such offender by process of extradition. This is elsewhere fully discussed. To arrest such offender in a foreign sovereign's territory, either by force or stealth, is a violation of the law of nations. Yet though so, it is a violation of which the offended sovereign alone has a right to complain. The person so arrested cannot plead the unlawfulness of the arrest in bar.

Aliens in

the coun

try of the

crime. Roman

4. Offences by Aliens in Country of Arrest.

§ 281. By the modern Roman law, all residents are bound by the territorial law. "Whoever," says Berner, in his dictable in authoritative work on the territorial bounds of penal jurisdiction," "enters our territory, juridically binds himself to submit to the laws of this territory. This law. duty is the more imperative as the laws which exact obedience are the more stringent. It is absurd to suppose that this obedience diminishes or ceases in respect to those laws on which the very existence of the community is staked."8 And it is even held

1 Com. v. Smith, 11 Allen, 243, person, and is, therefore, ancillary to 1866. See R. v. Murdock, 2 Den. C. jurisdiction of place of concoction. C. 298, 1850. Infra, 287.

2 State v. Grady, 34 Conn. 118, 1866. See R. v. Brisac, 4 East, 164, 1804; Bennett & Heard's Lead. Cas. 2d ed. ii. p. 151; Bishop's C. L. i. 80. As to Warren & Costello's Case, see U. S. Diplomatic Correspondence, 1868, pt. i. pp. 51, 129. For a report of these cases, and also for correspondence concerning the same, see same volume, pp. 341-348.

* Infra, & 287.

5 Whart. Crim. Pl. & Pr. 28 39 et seq.; State v. Smith, 1 Bailey, 283, 1830. 6 Ex parte Krans, 1 B. & C. 258, 1823; Ex parte Scott, 9 B. & C. 446, 1829; 4 M. & R. 361; Brewster v. State, 7 Vt. 118, 1835; Dow's Case, 18 Pa. 37, 1851. See, fully, Whart. Crim. Pl. & Pr. ? 27.

7 Berlin, 1855, p. 83.

3 See Com. v. Pettes, 114 Mass. 307, 8 For the United States Alien Act, 1873. Jurisdiction in place of con- authorizing the removal of alien summation supposes, it should be enemies, see Brightly, i. p. 33; Rev. added, possession of the defendant's Stat. U. S. 1878, ?? 4067 et seq.

in Prussia that a foreigner who lingers in a country with which the sovereign of his allegiance is at war, may be tried for treason to the country of his residence, if he aids in warlike designs against it.'

So in Eng

American

§ 282. "Local allegiance," says Blackstone, "is such as is due from an alien or stranger born, for so long time as he continues within the king's dominion and protection; and it ceases the instant the stranger transfers himself from the kingdom to another." Indictments for political offences of all lish and grades have been based on this form of allegiance.3 In law. Guinet's case, which was a prosecution in the United States Circuit Court in Philadelphia in 1795, for fitting out in Philadelphia a French armed vessel, to cruise against England, the United States and England being then at peace, the point that the defendant, a Frenchman by birth, had entered into the service of the French republic, was made by the defence, but was treated by the court as without weight, and the defendant was convicted. In the trial of the Fenian conspirators in Enggland and Ireland in 1868, several of the defendants set up alienage and citizenship in the United States as a defence, but in vain. Mr. Adams, speaking of this in a letter to Mr. Seward, of May 2, 1868, says: "The only question he," one of the defendants, "raises, is that of citizenship; but even that relates rather to the form of trial, as on the merits, even his being admitted to be an alien would not shield him from the consequence of acts dangerous to the peace of the realm." The same view was taken by Mr. Buchanan, when Secretary of State. speech by Lord Lyndhurst in the

1 Preussiches, St. G. B. ? 70. * Comm. ii. 377.

See 27 Howell's St. Tr. 627; Peltier's Case, 28 Ibid. 530, 1803; R. v. Bernard, 1 F. & F. 240, 1858, cited infra, 287, and cases cited infra, ?? 287, 1805.

Whart. St. Tr. 93; U. S. v. Wiltberger, 5 Wheaton, 76, 1820; Whart.

Such, also, is the tenor of a House of Lords, in March, 1853.7

during the war, were held not exempt from prosecution for treason and giving aid and comfort to the enemy. Carlisle v. U. S., 16 Wall. 147, 1872; see U. S. v. Villato, 2 Dall. 370, 1797; Sprague, J., 23 Law Rep. 705.

St. Tr. 185. The Act of July 31, 6 See Cockburn on Nationality, 1861, punishing seditious conspir- London, 1869, p. 82, for other authoracy, applies to "persons within any ities to this effect. State or Territory of the United States," embracing all residents. Aliens who, being domiciled in the country previous to the late civil war, gave aid and comfort to the enemy

7124 Hansard's Parl. Deb. 1046, cited Whart. Conf. of Laws, ? 904, and discussion in Crim. Law Mag. for March, 1885.