National Republican., 1886-09-10

ton.
II is announced that notwithstanding the
release Of Cutting, our Secretary OF State
win insist upon the abrogation OF article
1856 OF the Mexican Penal Code, which con-
ters upon Mexican courts Jurisdiction, un
der certain circumstances, over foreigners
for ofTenses committed outside OF Mexican
territory; or, at least, that Mr. Bayard will
insist upon the renunciation by Mexico OF
the right to subject American citizens to
that code, on the ground that American
courts have exclusive criminal jurisdiction
over offenses committed within the territory
of the United States by American citizens.
IL is now conceded that Cutting was not ar
rested and tried In Mexico for any offense
committed in the United States, but as his
trial has developed the claim OF Mexico to
extra-terTitorial criminal Jurisdiction, for
the protection OF our citizens In the future
our government will insist upon the eexemp-
tion OF Americans from that Jurisdiction.
AS the attitude OF Secretary Bayard
raises a question Of both national and inter-
national Importance, IL is a matter OF much
interest TO know how well founded Is his
position. In this article we con6ne our
examination td'the declaration Of American
jurists and the practice Of our federal and
state governments on the subject.
We find that Chief Justice Taney has
laid down the broad doctrine, In the extra
dition case OF Holmes VS.. Jennison, Ia
Peters, that the states OF the Uniong "may, II
they think proper, in order TO deter offenders
from other countries from coming among
them, make crime committed elsewhere
punishable In their courts, II the guilty
party should be found within their iurlsdic-
ton. In all these cases the state acts with
view to its own safety, and is in no degree
connected with the foreign government in
which the crime wa committed And In
this doctrine Story and other jurists and
law writer's concur.
One OF the most accomplished and au-
thoritative Of our American law writers Is
Hon. Francis Wharton, l.. j.. D., the author
'>cf number OF standard law books, and
now holding the important post Of solicitor
Of the State Department. In addition to
the fact OF his acknowledged authority as q
jurlst, his position Of legal adviser to the
Secretary OF State gives special Significance
to his views. AS his works are OF recent
date, and embody the latest aud most ac-
cepted doctrines on the subject OF extra
territorial Jurisdiction, we deem II sufficient
to quote freely from his writings to estab-
lish the American doctrine on this subject,
without citing other authorities.
In sections S67 to $40 OF ne "Confict OF
Laws" he shows that our government has
enacted statutes Furnishing our own citi-
zens for various offenses committed abroad,
and that in this respect 1t has followed the
practice Of both England and the conti-
mental nations of Europe. He then pro.
ceeds:
SEC s71. But can a state punish aliens for
ollenses committed against It abroad2 Such
Jurisdiction is expressly claimed by the United
States in certain cases OF perjury aud forgery
before Its consular officers by aliens; nor can
there be serious doubt that an alien, who when
abroad plans violation of the laws OF such state,
is amenabe to the laws Of snch state should he
be arrested on Its soil amer the commission Of
SEC. SIC. The sturdiest advocates OF the hy-
pOthesis that the locus deitctt alone c0nfers
Jurisdiction have admitted that there are cases
IN which person whose residence Is outside
the territory may make himself, by conspiring
extra.territorallyt to defeat its laws, ird terri
torially responsible. II u forger, for Instance,
should establish on the Mexican side of the
boundary between the United States and Mex
leo a manufactory for the forging of the United
States securities, for us to hold that when the
mischiefis done he can take up his residence
in the United States without even liability to
arrest would not merely expose our govern
ment to spoliaton' but bring authority Into
SEC. S17. An anomaly such as this could be
tolerated by no civilized government, and
such has been the view taken at common law
It has been held that the originator OF nui-
sance to O. stream in one county. which at
feets such stream in another country, is liable
author of libel, uttered by him In one coun-
try and published by others In another coun-
try, from which he is absent at the time is tria.
BILE In the latter country that he who, on one
side of n boundary, shoots a person on the
other side, is amenable to the country where
the blow is received; that he who. in one state,
employs an innocent agent to obtain goods by
false pretenses in another state, is amenable
IN the latter state. and 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. In England we have
the same principle affirmed by the highest
SEC, ssl. The doctrine, therefore. that the
place of the commission OF crime has exclu-
sive jurisdiction over its punishment must be
abandoned Us untenable.
Referring to the objection that injustice
would ensue to the accused by requiring
witnesses to be brought from q distance,
DIR. Wharton says, In section 800;
II should be observed that this objection does
not lie in the mouth of one who elects TO vio-
late the laws Of state other than that OF his
residence, and afterwards to put himself within
the Jurisdiction of such state by visiting Its
territory. By these acts he accepts the Juris-
dictlon of such state, and cannot afterwards
complain of the hardships of his own choice.
While the foregoing are laid down as the
rules which should govern in the applica-
tion Of criminal justice under the common
law, the author uses the following slgnih-
cant language In section 920: ~.
Whether IL may not in future be necessary
for the United States to establish the jurisdio-
tion OF the forum daIIietosis, not merely as to
political offenses committed abroad, but as to
felonies committed by citizens In adjacent
semi-civilized countries, such as Mexico, re-
mains to be considered. Certainly, to permit
maraudeTs TO establish themselves on the Mex
lean side Of our boundary, and after murder.
ing and pillaging our own citizens, who may
there be travelling, to return to dwell In safety
in the United States, argues great failure OF
justice.
A new edition OF Wharton's "Crlmlnal
Lawn was published in 1880, In which the
author took occasion 20 qualify some por-
tion Of his previous exposition Of the law
on this subject, but none Of the principles
above quoted were disayowed. In fact II
will be seen that In this edition he carries
the doctrine Of the Jurisdiction over aliens
for offenses committed abroad still further
than in his treatise on the "Conalct of
Laws" In note to section 2S4 he discusses
at length the theories Of criminal jurlsdic-
tion which are technically known as the
Subjective and objective, and concludes that
"the view which appears to be the one best
calculated to reconcile our adjudicatlons on
this vexed question:" is the objective,
''whch assumes that each state has juris.
diction Of all offenses which assail Its rights
or the rights OF its subjects no matter
= where the offender was at the time of the
commission OF the ofrense;" and he EN-
bodies In the volume an article which he
contributed, In 1873, to "The Southern Law
Review" giving the most recent and ac-
cepted view OF the subject, from which the
following are extracts f;
Jurisdiction Is accqnired, not because the
criminal was, at the time Of the crime, within
the territory of the offending sovereign moi
because he was at the time subject of said