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of legislation to hold such foreigners responsible for acts they may commit abroad against that nation, or against any of its citizens or subjects.

"The fallacy of the last clause of the proposition cannot be more clearly shown than by referring to that part of the same note in which Mr. Mariscal endeavors to show that Fiore, notwithstanding the express declarations quoted by this Department from his works, does not antagonize or condemn the punishment by a state of a foreigner when he offends one of its citizens in a foreign country. To prove this, Mr. Mariscal quotes from section 66 of Fiore's Droit Pénal International,' in which the learned author admits the right of the state to punish every individual without distinction, be he foreigner or native, when he, by acts committed abroad, may have transgressed the laws that sustain our institutions, or may have violated the rights either of a state or those of persons protected by our laws.'

"This passage, which Mr. Mariscal has quoted to sustain his contention, seems to me to be fatal to it. If it could be contended that a Mexican or any other foreigner is protected in the United States by the municipal law of his own country, then the passage quoted from Fiore might be held to contradict his explicit declaration that he cannot admit the doctrine that the extraterritoriality of penal law ought to depend on the quality of the person to the prejudice of whom the offense has been committed; and his further declaration that he cannot admit that a rule of action may be violated which was not obligatory in the place where the offense was committed.'

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“But it cannot be contended that foreigners are protected in the United States by their national laws. Fiore himself says that no sovereign can exercise his repressive power on territory under the dominion of another sovereign.' (Droit Pénal International, Paris, 1880, p. 94.) Nor am I acquainted with the works of any author, ancient or modern, who holds an opposite opinion.

"Hence, when Fiore limits penal jurisdiction to the punishment of infractions of the rights of a state or of persons protected by its laws, he clearly and unmistakably negatives the claim of extraterritorial jurisdiction, against which this Government protested in the case of Mr. Cutting. No sovereign state can admit that its citizens are subject in their own country to the control of a foreign municipal law. And so must every sovereign state equally repudiate the correlative proposition that foreigners within its territory are protected by the municipal law of their own country or countries against the acts of citizens of such state. Such a doctrine would carry the extraterritoriality of penal law even beyond the limits set in the conventions between Christian and non-Christian countries, under which the citizens of the former are exempt from the local law, and would produce a confusion and conflict of jurisdictions which could only H. Doc. 551-vol 2—16

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lead to dangerous and frequent disputes. It is not denied that a state may impose rational conditions upon the entry of foreigners upon its own territory,' as Mr. Mariscal contends, but in the opinion of this Department no condition can be regarded as rational, or as consistent with those amicable relations which nations should seek to cultivate and foster, that derogates from the sovereignty and exclusive jurisdiction of foreign states over their own territory.

"In view of these circumstances, it is hoped that the Government of Mexico will yet see its way to a modification of article 186.

"In regard to Mr. Mariscal's reference to the codes of New York and Texas, and his expression of surprise that they are not noticed in the report on extraterritorial crime, it should be observed that they are both discussed on page 25 of that document, and shown to rest, as to the provisions cited by Mr. Mariscal, on a principle precisely opposite to that which he has defended in article 186 of the Mexican penal code.

"You are authorized to state the views herein expressed to Mr. Mariscal and to leave him a copy of this instruction should he desire it."

Mr. Bayard, Sec. of State, to Mr. Bragg, min. to Mexico, May 4, 1888,
For. Rel. 1888, II. 1189.

Article III. of the treaty of extradition between the United States and Mexico, concluded February 22, 1899, contains the following stipulation: "4. When the extradition is demanded on account of a crime or offense for which the person demanded is undergoing or has undergone punishment in the country from which the extradition is demanded, or in case he or she shall have been prosecuted therein on the same charge and acquitted thereof; provided that, with the exception of the offenses included in clause 13 Article 2, of this convention, each contracting party agrees not to assume jurisdiction in the punishment of crimes committed exclusively within the territory of the other."

Clause 13 of Article II. of the treaty provides for the extradition of persons charged with or convicted of "embezzlement or criminal malversation of public funds committed within the jurisdiction of either party by public officers or depositaries."

3. LEGISLATION AND JUDICIAL DECISIONS.

$202.

"The various theories of criminal jurisdiction discussed in the books may may conveniently be arranged as follows:

Moore's Report:

Theories of crimi

nal jurisdiction.

"1. Actual

66 I. TERRITORIAL.

"a. Subjective: As to offenses committed by persons on the territory, except diplomatic officers.

"b. Objective: As to offenses committed within the territory by persons outside; e. g., a shot fired on one side of the boundary and taking effect on the other; infernal machine, swindling letter, poisonous food, counterfeit money, &c., sent into country by person outside.

“2. Constructive.—Over offenses committed on vessels of country.

"1. Personal, over citizens:

"II. NON-TERRITORIAL.

"a. generally; b. in particular places, e. g., barbarous lands; c. as to particular acts.

"2. As to particular offenses, whether by citizens or foreigners.

"a. Piracy.

"b. Where two countries by convention agree to punish the citizens of each other, e. g., conventions for suppression of slave trade.

"c. Against safety of state; counterfeiting or forging national seals, papers, moneys, bank bills authorized by law.

"3. Offenses committed abroad by foreigners against citizens.

66

'4. All offenses, wherever and by whomsoever committed.

"It is unnecessary for our present purpose to discuss in detail all the theories of criminal jurisdiction which are stated in the foregoing synopsis. The right of every nation, in the exercise of its sovereignty, to punish acts committed on its soil and in violation of its laws by persons within its territory, may be conceded. The right of a nation to punish offenses committed on its vessels, national or private, which for jurisdictional purposes are considered as part of the national territory, is also admitted. Such offenses, it has been held, may be punished by the vessel's sovereign even when they were committed on a merchant vessel in the ports of another sovereign, provided the latter did not take jurisdiction. And it may also be granted that a nation may, under proper limitations, punish offenses committed within its territory by persons corporeally outside.

"It is true that in the case of an offense committed within the territory of one state by a person corporeally within the territory of another state, there may sometimes be concurrent jurisdiction-the former state having jurisdiction by reason of the locality of the act,

the latter by reason of the locality of the actor. In such case the latter state may punish the perpetrator, or may give him up to the other state; or, if it see fit, may decline to do either. But the fact that a state may be unable to obtain jurisdiction of the offender is not a test of its jurisdiction over the offense, for such inability may exist where the person who committed the offense was, at the time of its commission, within the territory, but subsequently fled to the jurisdiction of another country.

Causal connection,

and

constructive presence.

"The principle that a man who outside of a country wilfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries. And the methods which modern invention has furnished for the performance of criminal acts in that manner has made this principle one of constantly growing importance and of increasing frequency of application.

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Its logical soundness and necessity received early recognition in the common law. Thus it was held that a man who erected a nuisance in one county which took effect in another was criminally liable in the county in which the injury was done. (Bulwer's case, 7 Co. 2 b. 3 b.; Com. Dig. Action, N. 3, 11.) So, if a man, being in one place, circulates a libel in another, he is answerable at the latter place. (Seven Bishops' Case, 12 State Trials, p. 331; Rex v. Johnson, 7 East, 65.) The same rule applies to obtaining money or goods by false pretences; but it must appear that the false pretences were actually made at the place where the prisoner is held, and not merely that the pretences, which were made elsewhere, resulted in defrauding some one at the place of trial. (Reg. v. Garrett, 6 Cox C. C. 260.) So, if persons outside of a country procure therein the making and engraving of a plate for purposes of forgery, they are indictable there. (Queen . Bull & Schmidt, 1 Cox C. C. 281.) Likewise, for cheating by false papers. (King v. Brisac & Scott, 4 East, 164.) "The same principle obtains in the United States. Thus a man may be convicted of subornation of perjury in the State in which, through the agency of a person there resident, the offense was committed, though he was himself in another State. (Com. v. Smith, 11 Allen, 243.) So, where a citizen and resident of Ohio obtained money in the State of New York by a fictitious receipt signed by him in Ohio, but sent to the city of New York to be fraudulently used, it was held

a State v. Williford, 91 N. C. 529. Adjacent States of the Union and adjacent countries sometimes exercise concurrent jurisdiction of offences committed within a certain distance of the boundary. (Jackson v. State, 90 Ala. 590, 8 So. 862; State v. George, 60 Minn, 503, 63 N. W. 100; State v. Rockwell (Iowa), 48 N. W. 721.

For a discussion as to the locality of the offence, see State v. Morrill, 68 Vt. 60, 54 Am. St. Rep. 870.

that, being in that State, he was liable to trial and punishment; and the court observed―

“It is not necessary to notice the peculiar relation which a citizen of one of the United States sustains to the other States; for if a subject of the British Crown, while standing on British soil in Canada, should kill a man in this State, by shooting or other means, I entertain no doubt that he would be subject to punishment here whenever our courts could get jurisdiction over his person. . . . If our courts cannot get jurisdiction over his person they cannot try him. But that is no more than happens when a citizen, who has committed an offense within the State, escapes, and cannot be found. Jurisdiction of the offense or subject-matter and jurisdiction to try the offender are very different things. The first exists whenever the offense was committed within this State, and the second when the offender is brought into court, and not before." (Bronson, J., in Adams v. The People; Comstock's R. (N. Y.), 173, 179.)"

"The same principle has also been held to apply as to nuisances. (Stillman & Co. ". White Rock Mfg. Co. et al., 3 Woodbury & Minot, C. C. Rep. 538.) So if a person forge notes in one place and utter them in another, using for that purpose the mails, he is answerable in the latter place for the utterance of the forged papers. (The People v. Rathbun, 21 Wend. 509; Supreme court of New York.) But where, under a statute providing that every person who shall sell or in any manner transfer the services of any black, who shall have been forcibly taken, inveigled or kidnapped from this State (New York) to any other State, place, or country, shall, upon conviction, be punished,' a person was indicted not only for inveigling a free negro from the State of New York with intent to sell him, but also for the actual sale of him in another State, it was held that the counts in the indictment relating to the latter charge were bad, the court saying: 'It cannot be pretended or assumed that a State has jurisdiction over crimes committed beyond its territorial limits.' (People. Merrill, 2 Parker's Crim. Rep. 590.)

"It has been held by the supreme court of Connecticut that where an inhabitant of Massachusetts sent some paupers into Connecticut in charge of his son, who, by direction of his father, left them there, in contravention of the statute of Connecticut forbidding the bringing of paupers into the State, under penalty of a fine, the father was answerable under the statute. (Barkhamsted . Parsons, 3 Conn. 1.) The same principle was applied in the case of the State ». Grady, 34 Conn. 118, the court at the same time saying:

"It is undoubtedly true, as claimed, that the courts of this State can take no cognizance of an offense committed in another State. Such was the decision in Gilbert . Steadman, 1 Root, 403. But it

a Obtaining property by false pretences is punishable at the place where the property is delivered. (State . House, 55 Iowa, 466; State v. Dennis, 80 Mo. 589; State v. Shaeffer, 89 Mo. 271, 1 S. W. 293.)

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