for this discussion; but I do call attention to the growing, practical necessity of limiting and controlling the publication of all written judicial opinions. The written opinion is really an American innovation in the law. In the English law courts the judgments were always oral, except in very special cases, where there was a curia vult advisari; and the English reports were made by lawyers who sat in court and took down the judgment in their notes from the lips of the judges. Lord Coke says: "If judges should set down the reasons and causes of their judgments within their record, that immense labor should withdraw them from the necessary service of the Commonwealth and their records should grow to be more like elephantini libri, of infinite length, and, in mine opinion, lose some of their present authority and reverence, and this is worthy for learned and grave men to imitate."

These remarks of Lord Coke were quoted by Justice Field, then chief Justice of the supreme court of California, in an opinion (Houston v. Williams, 13 Cal., 24) holding invalid a statute of California requiring the supreme court judges to give the reasons of its decisions in writing. He said the practice of written opinions is of American origin, and that the legislature could no more require the court to give the reasons for its judgments than the court could require the legislature to give the reasons for its enactments. This view, however, has not prevented some of our States from requiring the judges, both in constitutions and statutes, to give their opinions in writing. The only effective remedy is the limiting of formal opinions to those cases deemed to be important as precedents, and here we find the necessity for vesting a larger discretion in our courts. The great guiding principles of the law are now determined, but the infinite complexity of human transactions will continue in the future and call for new applications of these controlling principles. No doubt these provisions requiring written opinions were enacted from distrust of the judges and with the view of compelling evidence of the performance of their duties.

It should be noted, however, that several States are realizing the necessity of limiting this interminable burden of judicial reports, and in several States judges are relieved of this burden, except when in their judgment the case calls for a written opinion.

Another cause of delay in the practical administration of justice has been in the holding of cases by judges under advisement, in delaying often for months and sometimes for years the announcement of opinions. The State of California some years since attempted to remedy this evil by providing in its State constitution that judges should not draw their salaries until they had certified that they had had no case under advisement for more than the prescribed number of days. No feature of our American jurisprudence has been more adversely commented upon by jurists from England and other countries than this delay in the decision of causes. It is to be hoped that the relieving of judges from the requirement of written opinion, except where the public interest required, would remove a potent cause of this delay.

What has been said with reference to civil causes applies with even greater force to the delays and ineffectiveness in the administration of justice in criminal cases. Thus the exempton from self-incrimination peculiar to common-law countries is based on historic considerations, which jealously guarded the rights of the accused in prosecutions by the States. However important the exemption from self-incrimination was in past centuries, where the individual needed this protection against the power of the State, a very different question has been presented in our modern civilization where society needs protection against organized crime, as such protection is afforded in countries, such as France, under the civil law.

In a recent decision the Supreme Court of the United States (Twining v. New Jersey, 211 U. S., 78) held that this exemption from self-incrimination, though secured as against Federal action by the fifth amendment to the United States Constitution, is not one of the fundamental rights of national citizenship which the States are forbidden by the fourteenth amendment to abridge, and that this exemption is not safeguarded as against State action by the provision of the fourteenth amendment that no State shall deprive a person of his life, liberty, or property without due process of law. This was in New Jersey where the courts are allowed to call the attention of the jury to the refusal of the accused person to testify, although he is not compelled to testify. The court affirmed the contention of the State, holding that the exemption from compulsory selfincrimination had been developed as a rule of evidence by the English courts and was not included in the due process of law guaranteed by Magna Charta. This opens the way for our States to legislate for the protection of society against crime.

We thus see there are encouraging signs of reform, in that we are now realiz ing that extreme technicality is a sign of an undeveloped system of law in which legal rights are subordinate to the procedure to enforce them and wherein the substance is secondary to the form. These forms were regarded with superstitious reverence in the early stages of society, but it is now recognized that the simpler the procedure the better it serves its purpose; this does not mean that we should substitute haste and want of consideration for deliberation and judgment, but it does mean that our judicial machinery must be so simple that justice will be literally brought home to the people, and that busy men can afford to litigate the complicated questions arising in our complex industrial life.

We have seen, however, that this reform of our judicial procedure is dependent at all stages upon the wide discretion of an enlightened and independent judiciary. Whether we substitute elastic court rules for rigid statutory procedure or appeal to the courts to apply their judicial discretion in liberalizing our archaic rules of evidence, which now obscure the ascertainment of the facts in issue, and if we make the trial judge more than a mere umpire in the game of litigation, or if we seek to reduce the overwhelming mass of printed reports to those only useful as precedents, or even if we seek to reduce the interminable length of judicial opinions, or if, more than all, we seek to remove the ancient presumption of prejudice from error and to make our appellate hearings more than mere quests for error-in each and every one of these methods of reform we find as an indispensable factor the enlarged discretion of an independent judiciary.

The deplorable conditions, as has been shown, under which our country has developed have emphasized the inadequacy of our judicial system in the practical administration of justice, particularly in our great centers of population. It is encouraging to observe that the popular mind and conscience are being awakened to this situation and that the progress of reform in the administration of justice, though slow, promises to be sure and effective.

Progress in law reform is slow in this country because we have 48 sovereign States, each with its own judicial procedure, and there is the not unnatural prejudice of a self-governing people against any extension of judicial power. But we feel that the reform is safe and sure, because of our confidence that the enlightened good sense of our people is coming to realize that liberty must be reconciled with order and that justice without sale, denial, or delay is the crowning triumph of an industrial civilization.

The CHAIRMAN. Ladies and gentlemen, for several years the general subject of the extraterritorial effect of criminal statutes has been studied by Prof. William H. Page, of the law school of the Ohio State University, and I am now glad to call upon him to discuss that subject.

THE EXTRATERRITORIAL EFFECT OF CRIMINAL STATUTES. By WILLIAM H. PAGE,

Professor of Law, Ohio State University.

Whether a statute is a living and vital part of the law, whether it introduces new rules, principles, and standards into the law, and whether it can be used as an analogy which can be extended to cases not included within its original meaning, is a question which has been propounded at different times and in different ways to the Roman law, and to the system of the law in force in England and in the United States to which, for the sake of brevity and convenience, the term common law will be applied in this paper. This question has been answered in the affirmative by the Roman law, while the common law has in the past answered it in the negative in many varied and emphatic forms. The very courts, however, which most emphatically refuse to the statute a place among the general principles, rules, or standards of our law are nevertheless frequently influenced unconsciously by the general attitude of our law as expressed in legislation. Interesting illustrations of this tendency of our courts might be found in affirmative examples, but still more in negative examples. If certain powers, inherent in the general conception of the State, are not exercised at common law, and if the legislature has refrained from the exercise of such power for a long period of time, the courts are very likely to deduce from this failure to exercise such power the rule that the power itself does not exist. For this reason, in considering the extraterritorial effect of statutes, especially of those of the various States of the United States, we are confronted at the outset with a question which is apparently inevitable in our law, and that is: Can this extraterritorial power be exercised at all by the legislature? It is only when this question can be answered in the affirmative that we can then consider the scope, effect, and application of the statutes which the legislature has in fact enacted. In the few cases in which the exercise of this power in the past has been regular and continuous, the existence of such power, as will be shown hereafter, is unquestioned; although even in these cases the courts prefer to explain this power as territorial in character, even if it is necessary to resort to some fiction in order to establish this territorial character. On the other hand, in the cases in which the attempted exercise of this power is rare and occasional, our courts are very likely to deny its existence, or, at best, to seize upon some act, condition, or effect within the territory of the State as a justification for the exercise of this power upon acts which have been done without the State.

While the question of the extraterritorial effect of a statute is by no means one of criminal law alone, the criminal statute may for convenience be taken as the type for special consideration. Without attempting any close analysis, which, even if limited to the criminal statute, would alone exceed the limits of time and space available for this discussion, we may note the three general 1 See Common Law and Legislation, by Roscoe Pound, 21 Harvard Law Review, 383.

classes of cases which have arisen upon this point in the actual administration of justice. We find (1) the extraterritorial statute by which a State attempts to regulate the conduct of its subjects who are outside of its territorial jurisdiction, and which may be justified upon the theory of the power of the State over its subjects, as far as our law recognizes such extraterritorial power; (2) the extraterritorial statute which is intended to apply to cases in which some part of the act which it is sought to punish is done, or the condition which it is sought to prevent exists, either actually or constructively in the State which seeks to punish such act or omission, and which may be explained upon the territorial theory, though in some cases by a very liberal use of the legal fiction; and (3) the extraterritorial statute which does not apply to the subjects of the States, in which the territorial theory is not recognized or in which it is too remote even for the most liberal legal fiction, and which may be justified, if at all, only upon the theory of the power of the State to protect itself, in its ordinary administration of criminal justice, by punishing persons who are within its territorial jurisdiction, at the time at which it is sought to inflict punishment, although not its subjects, who have done an act outside of the territorial jurisdiction of the State, by which the State has been injured.

In this connection it must be noted that the power of a State to give extraterritorial effect to its criminal statute has nothing to do with extradition or with interstate rendition between the different States of the United States. It may be that the guilty person can not be punished in the State which gives extraterritorial effect to its statute unless he comes into its territorial jurisdietion voluntarily. Furthermore, a statute which has extraterritorial operation can not protect the wrongdoer from criminal prosecution by the State in which he committed such offense unless special relations exist between the two States by treaty or otherwise.'

One who makes false statements in one State, by which false pretenses goods are obtained in another State, will not be surrendered by the former State to the latter State in extradition proceedings. Ex parte Graham, 216 Fed. 813; Hartman v. Aveline, 63 Ind. 344; Jones v. Leonard, 50 Ia. 106, 32 Am. Rep. 116; Wilcox v. Nolze, 34 0. S. 520.

Nor will he be surrendered to the State in which the defrauded party is domiciled if the false representations are made and the goods obtained from the agent of the defrauded party in another State. In re Mohr, 73 Ala. 503, 49 Am. Rep. 63.

The same rule applies in case of larceny and receiving stolen goods (matter of application of Shoemaker, 25 Cal. App. 551, 144 Pac. 985); or to larceny and false pretenses (People ex rel. v. Hyatt, 172 N. Y. 176, 92 Am. St. Rep. 706; affirmed Hyatt v. People ex rel., 188 U. S. 691, distinguishing Adams v. People, 1 N. Y. 173); or to failure to support a minor child (Ex parte Kuhns, 36 Nev. 487, 137 Pac. 83); or to murder committed by shooting across a State line (State v. Hall, 115 N. Car. 811); if the accused was not actually within the State which demands his surrender when some overt act intended to be a material step toward accomplishing the crime was done. If the criminal is taken, without a hearing, to the latter State, he will be discharged in habeas corpus proceedings. Tennessee v. Jackson, 36 Fed. 258, 1 L. R. A. 370.

It is not necessary, however, that the criminal do within the State every act necessary to complete the crime, to become a fugitive from justice. If he does an overt act within the State which is intended to be a material step toward accomplishing the crime and then absents himself from the States and does the rest else where, he becomes a fugitive from justice when the crime is complete if not before. Strassheim v. Dally, 221 U. S. 280; Ex parte Graham, 216 Fed. 831; Ex parte Hoffstot, 180 Fed. 240; In re Cook, 49 Fed. 833; In re Sultan, 115 N. C. 57.

'A subject of the United States who embezzles public funds in Cuba has no legal or constitutional right to a trial in accordance with the laws and constitutional provisions of the United States. Neeley v. Henkel, 180 U. S. 109.

The court refused to deliver up to the French Government a Frenchman who had entered the mansion house of the minister plenipotentiary of France and there had

1. The power of the State to punish its subjects for crimes committed on land outside of the territorial jurisdiction seems to be recognized, though with some diversity of opinion, by our text writers,' and, though with greater diversity of opinion, by our courts. Our common law does not purport to be extrathreatened bodily harm and violence to the secretary of the French legation; and had afterwards committed assault and battery upon him in a public street in Philadelphia; but sentenced the accused to pay a fine of 100 French crowns; to be imprisoned two years; and then to give security to keep the peace for seven years. Republica v. De Longchamps, 1 Dallas, 111.

Under an ordinance of Hongkong which provided for imprisoning and returning to China a Chinese subject who has committed an offense against the laws of China, a Chinese coolle will not be returned to China for taking possession of a French ship on which he was being transported to Peru, and for killing the captain and some of the crew who were French subjects. It will not be presumed that China has a law providing for punishing its subjects for crimes committed out of its territory. If any municipal law was violated it was the law of France. If the conduct of the accused was piracy jure gentium he should be tried at Hongkong. Attorney General v. Kwok

a Sing, L. R. 5 P. C. 179.

Hershey, International Law, sec. 149, sec. 249 n, 65; Story, Conflict of Laws, 7th ed., secs. 21, 22; Wheaton (Dana's ed.), sec. 113, pp. 179, 180.

For theories of criminal jurisdiction see also Moore Dig. Int. L. II 243; Wharton Conflict of Laws, pp. 1603 et seq. (secs. 809 et seq.); Bishop, Criminal Law, sec. 109; Hershey, International Law, secs. 149, 207 to 211, 215; Wharton's Criminal Law (11th ed.), sec. 316.

The wisdom and justice of the exercise of this power have been questioned. "The system of tying the entire criminal law of a country around the neck of a subject and of making him liable to its operation in whatever part of the world he may be converts the criminal law into a personal statute." Lewis, Foreign Jurisdiction 29. It is said that the United States does not attempt to exercise jurisdiction over its citizens when outside of its territory. Woolsey, International Law, sec. 78.

This is true of the ordinary citizen when on land outside of the territorial limits of the United States. It is incorrect, evidently, if applicable to persons on the high seas or to such special classes of persons as ambassadors. It is not intended, apparently to apply to the power of the United States, but only to the exercise of that power.

"As to our own citizens I can see no reason why they should be exempted from the operation of the laws of the country even though in foreign service. Their subjection to those laws follows them everywhere. In our own courts they are secured by the Constitution from being twice put in jeopardy of life or member, and if they are also made amenable to the laws of another State it is the result of their own act in subjecting themselves to such laws." Johnson, J., in U. S. v. Pirates, 5 Wheat., 184 (197, 198). It is generally said by the courts that a State may punish offenses committed by its own citizens beyond its territorial limits. People v. Merrill, 2 Park. Crim. (N. Y.), 590. "Any nation may make laws to punish its own subjects for offenses committed outside its own territory." Attorney General v. Kwok a Sing, L. R. 5 P. C. 179.

"It seems to be well established that every nation has the right to punish its own citizens for the violation of its laws wherever committed. This right is based upon the duty of allegiance, and it does not rest upon the assumption that one State can extend its laws into another, so as to make them directly operative there, or impose any obligation on such other State to observe them or give any effect to them; but merely that they may be personally binding upon the citizen of the State which enacts them, and justify his punishment for their violation by such State when he returns within its limits." State ex rel. v. Main, 16 Wis., 398.

In some cases the existence of the power of a State to punish its subjects for crimes committed beyond its territorial limits has been denied in obiter. It has been said there can not be two sovereignties supreme over the same place at the same time over the same subject matter. State v. Carter, 27 N. J. L. (3 Dutch), 499.

It has also been said that the personal jurisdiction generally claimed by nations over their subjects who have committed offenses abroad or on the high seas does not exist as between the States of the Union under their peculiar relation to each other. State v. Hall, 114 N. Car., 909.

A classification has been made of the cases in which the United States can inflict punishment for acts done beyond its limits, which would seem to exclude the general power of the United States to punish its subjects for acts done on land in an inhabited community.

It has been said that the extraterritorial criminal jurisdiction of the United States extends to (1) violation of treaty stipulations by its citizens abroad; (2) offenses com