may indicate disobedience to a command forbidding a change of nationality, or prohibiting foreign service not specially authorized, neither circumstance appears, according to American opinion, to justify the assertion of control or jurisdiction over the individual or the ship. That right is necessarily the exclusive possession of the State to which the vessel belongs. For the ship's protection rather than that of a particular occupant, the law of nations denies the privilege to any other power.1

e

Extraterritorial Crime

(1)

§ 238. Offenses Committed Outside of the State and Taking Effect Therein.

The setting in motion outside of a State of a force which produces as a direct consequence an injurious effect therein, justifies the territorial sovereign in prosecuting the actor when he enters its domain. Instances of the recognition of this principle in American cases are numerous and varied. It has been observed, however, that in both England and America, the courts have not assumed jurisdiction

even under Statutes couched in the most general language, to try and sentence a foreigner for acts done by him abroad, unless they were brought, either by an immediate effect or by

The claim of impressment seems at the present day to possess, however, even if it has never been formally renounced, only an historic interest as a phase of the struggle for the establishment of the principle of the freedom of the seas. This great principle, Great Britain now fully recognizes and maintains; she also permits the expatriation of her subjects, and acknowledges the qualified nationality derived by seamen from their services; and, in the case of Mason and Slidell, she impliedly affirmed that the taking of persons from a neutral vessel, under cover of the belligerent right of visit and search, could not be justified by a claim to their allegiance." Moore, Dig., II, 987.

See, also, Mr. Marshall, Secy. of State, to Mr. King, Minister to England, Sept. 20, 1800, Am. State Pap., For. Rel. II, 486, 489, Moore, Dig., II, 989; Moore, Dig., II, 987-1001 and documents there cited; Woolsey, 6 ed., 384386.

1 Indirect Unneutral Service, Persons Subject to Interception, The Trent Case, infra, §§ 818.

2 The analysis and treatment of this problem are based upon Mr. Moore's masterly Report on Extraterritorial Crime, contained in For. Rel. 1887,

757.

3 See, for example, United States v. Davis, 2 Sumner, 482; Commonwealth v. White, 123 Mass. 430; State v. Hall, 114 N. Car. 909; Simpson v. State, 92 Ga. 41.

OFFENSES COMMITTED ON VESSELS OF THE STATE [§ 239

direct and continuous causal relationship, within the territorial jurisdiction of the court.1

In 1910, the Department of State declared that "inasmuch as, under Anglo-Saxon legal theory, crime is territorial, not personal, and therefore the criminal jurisdiction of the United States does not, as a general rule, extend to crimes committed outside of its jurisdiction, whether by American citizens or aliens", it was not possible to meet the suggestion of a German note verbale that there be any American guarantee of the criminal prosecution in the United States of an American citizen charged with the commission of a crime in Germany.2

(2)

$239. Offenses Committed on Vessels of the State.

A State has the right to make reasonable application of its criminal code to its own vessels (private or public) when they are on the high seas, and, therefore, to punish the occupants who violate it. The relation of the State to the vessel when so circumstanced justifies the assertion of jurisdiction. It has been observed, however, that when a merchant vessel (as distinct from a public ship) enters a foreign port, it is not exempt from the local jurisdiction, and that one who, while on board, commits a criminal act is ordinarily amenable to local process. Nevertheless, the State to which the vessel belongs may also punish the offender, especially if he be an officer or member of the crew, in case the territorial sovereign of the port may not have exercised

1

255.

5

Report on Extraterritorial Crime, For. Rel. 1887, 778, Moore, Dig., II,

2 Mr. Wilson (for Mr. Knox, Secy. of State) to Mr. Hill, Ambassador to Germany, Jan. 11, 1910, For. Rel. 1910, 518. See, also, United States v. Nord Deutscher Lloyd, 223 U. S. 512, 517-518, where Mr. Justice Lamar declared: "The statute, of course, has no extra-territorial operation, and the defendant cannot be indicted here for what he did in a foreign country. American Banana Co. v. United Fruit Co., 213 U. S. 347."

3 President Adams to Mr. Pickering, Secy. of State, May 21, 1799, John Adams' Works, VIII, 651, Moore, Dig., I, 930; Mr. Fish, Secy. of State, to Gen. Schenck Minister to England, Nov. 8, 1873, MS. Inst. Gr. Br., XXIII, 431, Moore, Dig., I, 931; Mr. Blaine, Secy. of State, to Mr. Ryan, Minister to Mexico, Nov. 27, 1889, For. Rel. 1889, 614, Moore, Dig., I, 931; Opinion of Mr. Cushing, Atty.-Gen., Sept. 6, 1856, 8 Ops. Attys.-Gen., 73; Mr. Evarts, Secy. of State, to Mr. Welsh, Minister to England, No. 328, July 11, 1879, For. Rel. 1879, 435, Moore, Dig., I, 932.

5

Crapo v. Kelly, 16 Wall. 610, 624; Wilson v. McNamee, 102 U. S. 572. Rights of Jurisdiction, Ports and Bays; Foreign Merchant Vessels, Application of the Local Law, supra, § 221.

jurisdiction, and the offender enter the domain of the former.1 This concurrent right of that State is based on the theory that its connection with the ship suffices to justify the punishment of persons officially attached to it who disobey the commands of the sovereign wherever the vessel may be, and regardless of the legal quality which acts of disobedience may attain in the place where they are committed.2

It will be found that the exemption of a foreign public ship and its occupants from the local jurisdiction of the territorial sovereign is due to its consent.3

(3)

§ 240. Offenses Committed by Nationals of the State.

It is generally agreed that a State may punish its own nationals for disobeying its commands while within a foreign country, notwithstanding the legal quality which the territorial sovereign may have annexed to the acts of disobedience. The unwillingness of the former to respect and yield to the law of the latter is a matter with which no foreign power has the right to interfere.1 It is to be observed, however, that in practice the nationals of a State are rarely called upon to observe the general provisions of its criminal code when they are within the territory of a foreign country. If a State sees fit, for reasons of public policy, to pro

1 Mr. Webster, Secy. of State, to Lord Ashburton, British Minister, Aug. 1, 1842, Webster's Works, VI, 306, 307, cited in United States v. Rodgers, 150 U. S. 249, 264, Moore, Dig., I, 936; Reg. v. Anderson (1868), 11 Cox C. C. 198.

2 Nor would there seem to be any reason why the State to which the vessel belongs should be deterred from punishing a passenger, as distinct from a member of the crew, under the circumstances stated in the text, if he were guilty of conduct normally rendered criminal by the laws of enlightened States and by those of the country within whose territory he committed an offense, as well as by those of the prosecuting State.

3 Exemptions from Jurisdiction, Foreign Vessels of War, infra, §§ 251-253. 4 Mr. Bayard, Secy. of State, to Mr. Connery, Chargé at Mexico, Nov. 1, 1887, For. Rel. 1887, 751, 754, Moore, Dig., I, 933.

5 "The subject has presented to publicists and legislators so many grave doubts on the score of expediency and justice, that few countries have attempted to require of their citizens a general observance of their criminal law outside of the national territory, except in particular places. These exceptions are barbarous lands, in which local law does not exist, and to which the doctrine of the sovereignty of each nation over all persons within its territory does not completely apply; and Mohammedan and other nonChristian countries, in which the citizens of many states enjoy a conventional immunity from the local law." Report on Extraterritorial Crime, For. Rel. 1887, 779, Moore, Dig., II, 256.

Declared Mr. Justice Holmes in the case of American Banana Co. v. United Fruit Co., 213 U. S. 347, 355-356: “No doubt in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such countries may treat some relations between their citizens

IN GENERAL

[§ 241 hibit the commission by its nationals of particular acts (such as, for example, the remarriage by a divorced citizen within a specified period after the granting of a decree of divorce) anywhere in the world, the scope of the prohibition should be definitely expressed. In the United States the courts are reluctant to impute to the legislature an intention to give extraterritorial application to a penal law containing no express provision respecting the territorial scope of its application.1

(4)

Offenses Committed by Foreigners Outside of the State

241. In General.

(2)

Justification for the criminal prosecution of a foreigner by reason of the commission and consummation of an act outside of the prosecuting State, must, on principle, be due to the consent of his own country, or to the fact that the law of nations renders the act, by reason of its peculiar nature, internationally illegal, or because it is directed against the safety of the State.2 A State may, by treaty, consent that its nationals found engaged in the slave trade shall be prosecuted by another contracting party. Such as governed by their own law, and keep to some extent the old notion of personal sovereignty alive. See The Hamilton, 207 U. S. 398, 403; Hart v. Gumpach, L. R. 4 P. C. 439, 463, 464; British South Africa Co. v. Companhia de Moçambique [1893], A. C. 602. They go further, at times, and declare that they will punish any one, subject or not, who shall do certain things, if they can catch him, as in the case of pirates on the high seas. In cases immediately affecting national interests they may go further still and may make, and, if they get the chance, execute similar threats as to acts done within another recognized jurisdiction."

1 Van Voorhis v. Brintnall, 86 N. Y. 18; State v. Shattuck, 69 Vt. 403, 407; Commonwealth v. Lane, 113 Mass. 458. Compare Lanham v. Lanham, 136 Wis. 360, 365-366. See, also, Roth v. Roth, 104 Ills. 35, 44.

See State v. Fenn, 47 Washington, 561, and Commonwealth v. Lane, 113 Mass. 458, relative to statutes expressly forbidding divorced citizens from contracting marriages, under certain circumstances, outside of, as well as within the State.

Declared Mr. Justice Day in Sandberg v. McDonald, 248 U. S. 185, 195: "Legislation is presumptively territorial, and confined to limits over which the lawmaking power has jurisdiction."

2 Declared Mr. Justice Story, in The Apollon, 9 Wheat., 362, 370: “The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation, within its own jurisdiction. And however general and comprehensive the phrases used in municipal laws may be, they must always be restricted in construction, to places and persons, upon whom the legislature have authority and jurisdiction."

3 See, for example, treaty between the United States and Great Britain of April 7, 1862, for the Suppression of the African Slave Trade, Malloy's Treaties, I, 674.

an agreement affords, however, no proof of general acquiescence in the application of a local criminal code to the acts of foreigners committed abroad. Nor does the circumstance that the commission of the offense of piracy renders the actor, regardless of his nationality, amenable to prosecution by any maritime power,1 justify the inference that a territorial sovereign enjoys general authority to prosecute aliens entering its domain on account of the commission of other acts abroad.

(b)

§ 242. Offenses against the Safety of the State.

The statutory law of many States, and notably of continental Europe, has contemplated the prosecution of foreigners charged with the commission, while abroad, of acts directed against the safety of the State; and the legislation of several of that number assimilate to acts of such character those embracing the counterfeiting of seals of the State, as well as various forms of the national moneys. Such legislation may be regarded as exceptional in character. Occasions for its application are infrequent and attributable to circumstances indicative of a great public need.3 Statutes enacted for the preservation of the safety of a State afford slight support for the contention that it may normally apply its criminal code to aliens who outside of places subject to its control commit acts of which it disapproves.

(c)

§ 243. Offenses against Nationals of the State. Cutting's Case.

The attitude of the United States in Cutting's case is enlightening. On June 18, 1886, one A. T. Cutting, an American citizen, and a resident of Mexico, published in Texas a card commenting on certain proceedings of one Emigdio Medina, a Mexican citizen with whom Cutting had had a controversy. For that publica

1 Piracy, In General, supra, § 231.

2 See Report on Extraterritorial Crime, For. Rel. 1887, 790–791.

3 According to Art. VIII of the Resolutions adopted by the Institute of International Law, Sept. 7, 1883, with respect to the Conflict of Penal Laws: "Every State has the right to render punishable acts committed even outside of its territory and by foreigners in violation of its local laws, when they constitute an attack upon the social existence of the State and compromise its safety, and when they are not forbidden by the criminal law of the State on whose territory they have been committed."