New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1886-09-10
WHARTON VS.. BAYARD.
70 MEXICO R1cHTIN THE CUTTING CAsE'

CITED.
fBr TELEGRAPH TO THE TRIBUNE
WASHINGTON, Sept. 9.-One of the least crit
,ssa NJ SECRETARY Bayards acts has been the seiecuon
n, Francis wharton, L. D., as solicitor, or legal no.
x,ser Of the Department OF stata lie occupies hisn
roftion az an author of various works on nternatoha
and common law and his books are received as recog
n,zea authority on their respective topics. The ques
lions sought TO te raised by Mr. Bayard in the Cutting
case have been deliberately discussed by Dr. wharton
his works on The Conflict Of Laws" and on Crinipa
law md Il will be found interesting and curious 10
Examine how far learned doctor Of the law agrees
with his chie whom II lie his duty conscenousy 70
exronud the law on questions arising In the Depart
,aent Of state II well known that Mr. Bayaru n 'no
Cutting case set up OF straw TO DO knockea gov"
nv his bel,ease demand on the Mexican Governnen''
aud that like tue Quxotic knight he has been a 'o
while fighting windmills for the Mexican authofi.os
did not arrest and try Cutting for the oc puosneu ~
exas But all the same II is annoGnced from Tue 0'".
Department that tho United States Government sii
continue the dispute and viii Insist upon the soono
Of Article $50 OF the Mexican Penal Code on the gros
that II is contrary TO international law anu " '
Constitutional guarantees OF the Unlteu S'aoe'
subject an American ctisen to trial In Mexico LOT ac'
done within the United States This Subject
a, considerable Length by Dr. Wharton in bis works
above cited In sections s67 to $40 OF his Conflict OF
Laws he shows that this Government mas ehac'eu
statutes furnishing its citizens for various onehces
committed abroad and that In this respect 1t has
tolowea the practice OF England and the Continental
nation. q, Europe He then proceeds;
ssct,on s71 But can State punish aliens for offences
oomn,itted against IL abroad 2 such jurisdiction ls
expressly dpsv y gste s oees by
nor can there lie doubt thai an allen who wren
sno, to the laws of such state arrested
on It's soil after the commission OF an overt act a., ~
n,iocnle obtains in both German and French urispru-
sence In England IN indictments FOR administering s OF
county In the realm, though the offence was committed
Section s7o-The surdest advocates of the hypothesis
that The locus deitoi alone coners jurisdiction nave
admitted that there are cases IN which person whose
ocnspirng extra territoriaily TO defest lts laws III
1raterrliorsy responsible lao &c ,n or boSodsrS
between the United States and Mexico mandatory
o the forging Of the United states S ts Sr IN u hs
residence in the United states without even liability TO
spoistion. but bring its Authority into CONTEMPT
Section Stan anomaly such as tins could be toer-
% y AT common law both In England ana the
Tnitoi states Thus II has neld that the originator
sueb stream ia another country Is liable TO prosecution
In latter country; that the autaor OF Sei u,eaeu
= In one country aud published Oy others 10 AZ
StasI eSas me- latte; Yheh he Is absent at 6s time
sSS al 1 sboot on the o on one S
10 the country the blow is receved that he who
Nv false preteaces in another state IS amenabe in the
latter states and that he who sells through agents guilty
pi Innocent lottery tickets IN another state is amenable
In the STATE OF the sale though he absent from such
stae personally In ENGLAND we have the same pruci-
Section ssl-The doctrine therefore that tho pace OF
the commission OF crime mas eIepsive Sic
Referring the objection that injustice would ensue TO
The accused by requiring witnesses to be brought from
n distance DR.. Wharton says in Section 800.
should be observed that this objection does not lie in
tho mouth who elects to violate the laws OF state
otheI than that OF his residence, and a1eIward to put
himself within the jurisdiction of such state Dy visiting
H. Nv. na
OF such state. and cannot aiterward complain OF the
lardsnips OF his own choice
Willie the foregoing are laid down as the rules whch
SHOULD govern III tie application of criminal Justice
undor the common law, the author uses tie following
Significant language In Section 02O:
Whether IL uay not in future be necessary for tho
United states TO establish the jurisdiction OF the J2r.
abroad, but as TO feonies committed by
ri liens IN adjacent semicivized countries, such as
MEXICO remains TO DC considered Certainly 70 permit
paraudsrs TO establish themselves on tho Mexican side
OF our boundary and aner mnrae,ns au p1sg of to
dSe in safety IN tue United States argues great failure
Ui Justice.
. A new cation of Wharton's Criminal Law" was
blsntd In 1880 ia which the author took occasion 10
qualify some portion OF his previous exposition OF the
w on this subject, but none OF the principles above
un,ted we're dsavOwed In fact II VIII DO seen that III
tns edition he carries the doctrine OF the jurisdiction
over aliens offences committed abroad stu turthei
ihan IN his treatise the Conflict OF Laws" In
,,c b. Section 2s4 ne at length the theories
Of cri,iua jurisdiction which are technically known as
The subjunoye" and objective, and concludes that
he which appears to DO the one best calculated
L. reconcile a1Iudications this vexed ques ton
A. the objective" which that each State has
Jurisdiction OF oil offences which ass Its rights or the
rIts of is subjects, matter where the offender
p toe OF the commission OF the offence y; ana lie
subodies volume article which he contributed
in 1873 to The southern Lac Rerec, giving the most
reocnt and accepted view Of the subject. From this
article the following extracts arc taken;
Jurisdiction is acquired not because the criminal
the time OF the crime within the territory OF the
offending sovereign, nor because he was at the time
subject said sovereign. but because bis offence was
against the rights OF that SOVEREIGN, or OF his sub
because duty TO attach to crime committed within
or borders its eirbutioq But In addition TO this, we
the offender offences committed abroad by either subject
n sR be- ss t to- the real Theory OF Just
plated: .,.o,.,,ou. ,,.D,o o.. ,,,.o
tedence TO q law with which they ore not familiar But
y this objection IL valid 1t would relieve Foreigners
foreigner can set up defence OF OF our laws
abroad can set up the oeence o. Ignorance VI our
laws on our shores. The foreigner .who when
arriving OF cities passes oountarfeit United
States coin is not likely to be any more familiar with our
satates than he who executes the forging abroad But
in Ioint OF fact no such ignorance can be set up.
The presumption OF knowledge OF OF crime
Sualf ia So l. not limited By state boundaries.
Another and more serions objection is that the real
theory assals the prefogaves OF foreign soveregntes
TO this II may be replied that the objection proves too
mach. foreign sovereign has exciCs jurisdiction
his subjects, Lnen Wo cannot un'lef any crcuD-
stances punish tile subjects OF foreign sovereign But
this one even among the sturdiest advocates o. me
personal theory, pretcnds There Is no Civilized
ftae that has not passed. statutes making criminal
offence, punishable In It's own courts for foeigDers
even Their country to forge its securities. or TO
make false and fraudulent Oaths before It's Insus We
do not Is true, attempt to arrest them IL their own
land unless az preliminary TO demand for extradi-
ZION. But when such offenders come voluntarily
nvountarily within our borders We Try them as justly
snbjec; 70 our laws, on the ground that they have
crirl 'naliy assaled our rights
Dr Wharton ci,os the clause Of the With Amend
nent to the United States Constitution guaranteeing the
accused trial in the State and District wherein the
cr,me shall have committed" and states that few
questions claimed earlier moro conspicuous attention
from the Executive than those which concerned the
aud punishment al home OF offences against our
Sovereignty or against tue law OF nations abroad"
Aftor reviewing tho various statutes adopted by Con