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XIV. EVIDENCE.

345. When the object is to obtain testimony on the continent of Europe, the proper couree is to issue letters

gatory
ss ued to
obtain testi-
mony in

tries.

Letters ro- rogatory addressed to the court having jurisdiction over the witness. The examination of the witness is conducted by the judge, who is not bound by the other coun- interrogatories, but may put any questions he may deem expedient. He determines as to the privilege of witnesses, as to the form of oath, and as to the mode of requiring the production of documents. Competency and admissibility are to be determined by the court of trial to whom the letters rogatory are returned.1

Lex fori

346. As a general rule, matters of evidence are determined by the lex fori, though when questions of evi determines dence involve matters of substance, e. g., the admissibility of proof of a foreign law in subjection to

all questions of evidence.

which it is alleged a contract was made, then the judex fori will determine the question in conformity to a foreign law to which it is shown to be distinctively subject. But, ordinarily, all questions of evidence, so far as they touch the way in which a case is to be presented, are governed by the lex fori. Hence, all questions of relevancy, hearsay, and of parol variation are to be so adjudicated.2

g 347. We have already seen that foreign artificial personal incapacities have no extra-territorial effect; and the better opinion, in conformity with this view, is, consequently, that a foreign conviction of an inments to be famous offence does not incapacitate a witness, although such a conviction in the court of the forum

Admissibility of witnesses and docu

so deter

mined. would have had that effect3 À fortiori, a foreigner, a party to a suit, will not be precluded from testifying in our courts because he could not have been called as a witness in his domicil. The proof of documents is exclusively for the lex fori. So far as concerns foreign documents, it is generally

1 Whart. Conf. of Laws, §§ 752 et seq. That the court applied to for letters will act according to its discre

tion, see Boyse, in re, Crofton v. Crof-
ton, 46 L. T., N. S., 522.

2 Whart. Conf. of Laws, § 753.
3 Supra, § 266.

held that the seal of a foreign sovereign is self-proving, and that foreign parish records, or duly proved copies thereof, may be received in questions of genealogy.1

as a matter

of fact.

348. Of the law, merchant and maritime, and of the elementary principles of Roman and canon law, as systems of general jurisprudence, the courts will Foreign law proved take judicial notice. When, however, it becomes necessary to prove what is the law of a foreign country on a particular point, such law must be proved by experts as a matter of fact. When there is no such proof offered, the law of a state whose jurisprudence is based on the English common law will be presumed to be the same as our own on all general questions, though not as to what may be idiosyncrasies in our distinctive jurisprudence.-Foreign statutes are proved by exemplification, unless they be of a class of which the judex fori, under statutes or otherwise, takes judicial notice.2

XV. LIS PENDENS.

no bar.

§ 349. According to our practice, the pendency of a prior foreign suit for the same cause of action is no bar Prior forto a suit instituted in our own courts; and if the eign suit cause of action is one which properly belongs to us, the plaintiff, if subject to our jurisdiction, may be enjoined from proceeding in the foreign court. In proceedings in rem the first attachment binds.3

XVI. CRIMINAL JURISDICTION.

Country where

offence

takes effect has juris

§ 350. Two distinct theories have been advanced as to the basis of criminal jurisdiction. The first, the subjective theory, assumes that jurisdiction over the person of the defendant, either at the time of the arrest or at the time of the crime, gives jurisdiction over the crime. That the place of arrest has jurisdiction, which is the first phase of the subjective theory, is maintained by several European states, such states taking cognizance of all offences committed by persons arrested on

diction.

I Whart. Conf. of Laws, §§ 769 et seq. Co. v. Buckwoldt, 23 Ch. D. 225; 2 Ibid. §§ 771 et seq. McHenry v. Lewis, 21 Ch. D. 202.

Ibid. § 783. See Peruvian Guano

their shores, while others only entertain such jurisdiction of such persons as are their subjects. The second phase of the subjective theory-i. e., that the country where the offender was at the time of the commission of the crime has jurisdiction-is maintained by many high authorities both in England and in the United States. To this, however, there may be made the following objections: (1) Like the kindred theory of the control of the lex domicilii over personalty, it rests on a petitio principii. It assumes the guilt of an accused party in order to determine the question of guilt. It says: "We have jurisdiction because you, who were with us at the time, committed the offence, and our object in taking the jurisdiction is to determine whether the offence was committed." (2) This theory would permit the perpetrators of some of the most atrocious crimes to escape punishment. A package of dynamite could be sent from England to France or France to America, and, after it had done its work, its forwarder could take up his residence on the very site of the ruin it produced and defy arrest. There would be no jurisdiction over him in the country of the explosion because he was not there at the time. There would be no way of trying him in the country from which the package was forwarded, unless there should be an extradition treaty (of which at present there are none) covering the forwarding of destructive missiles. It may also be urged that to make the presence of the offender at the time a condition of jurisdiction would expose the inhabitants of the belt of our territory bordering on Mexico to assaults from the Mexican side, for which there could be no redress. The better view is to give the country in which the crime takes effect jurisdiction over the crime; aud this, which is called the objective theory, is sanctioned by that portion of our legislation which gives our courts jurisdiction (1) over forgery abroad of United States securities, or of perjury before United States consuls; (2) over offences on the high seas; (3) over political offences of subjects abroad; and (4) over offences on the high seas and in barbarous and semi-barbarous lands. By this theory, also, may be sustained numerous English and American rulings to the effect that the forwarder of a libellous letter is indictable in

the place of publication, and that a party who, living at the time abroad, commits in this country an indictable fraud through an agent, is indictable in this country. And this view is also consistent with the provision in the Federal constitution, that a trial is to take place in the place where the crime was committed.1

Offences

may be in a plurality of juris

cognizable

dictions.

§ 351. An offence, when there is a plurality of offenders, or a continuous succession of criminal effects, may be cognizable in a plurality of jurisdictions. This is the case with conspiracies of all classes where there are several overt acts, and with offences begun in one country and completed in another. In such cases, if there be two trials in different countries, the sentence in the second trial should be supplementary to that in the first, the punishment imposed in the first trial being taken into consideration in framing the second sentence.2

Extradition

generally

treaty.

352. Although there have been cases in which the government of the United States has, without a treaty, delivered fugitives from justice to other countries, and has, without a treaty, demanded such fugitives, limited by yet such action has never received judicial sanction; and the better opinion now is, that whatever may have been the law before the settlement of such questions by treaty became general, there can be no extradition except in conformity to treaty. A fortiori, when there is a treaty specifying certain offences as grounds for extradition, extradition will not be granted for offences other than those specified. Even for specified offences, surrender will not be ordered when the statute of limitations would for such an offence preclude a prosecution in the asylum state.3

1 See question discussed in Whart. Conf. of Laws, §§ 810 et seq., and noticed infra, § 579.

2 See Whart. Conf. of Laws, § 823; and see infra, § 527, as to priority of jurisdictions; see further, infra, §§ 444, 524.

' See Whart. Conf. of Laws, 2d ed., §§ 835 et seq., where the topic is discussed at large; Whart. Crim. Pl. and Pr., §§ 28 et seq.

As to English practice of extradition, see, further, 2 Steph. Hist. Cr. Law, 65 et seq.; London Law Times, Dec. 14, 1878; Bouvier, ex parte, 27 L. T. N. S. 844; Dipl. Corr. U. S., 1876, Appen. A.

As to practice in this country, see (in addition to cases cited in Whart. Conf. of Laws, §§ 835 et seq.), Ker, ex parte, Sup. Ct. Ind.; Lane, ex parte, 6 Fed. Rep. 34.

353. An executive will refuse extradition in a case in which it is obvious a fair trial cannot be had. It is also generally settled that extradition will be refused when there when the object of the process is to obtain custody of an insurgent or other political assailant of the the object demanding state.1

Extradition refused

cannot be a

fair trial.

and when

is political.

State having jurisdiction ought not to surrender.

354. There is no reason why a state having jurisdiction over a crime should surrender the alleged criminal to another state for punishment; and such a surrender would impose on the party surrendered unjustifiable trouble and cost. But surrender, in countries such as England and the United States, which do not base jurisdiction on allegiance, should not be refused merely because the accused is a subject of the asylum state. -A surrender will not be granted when the accused is in custody for another offence of which the asylum state has jurisdiction.2

Terms should be construed

as in asy

Probable

355. The words in an extradition treaty, as well as those in the demand and accompanying papers, are to be interpreted in the sense in which they are used in the asylum state. It is not necessary that at the hearlum state. ing the accused's guilt should be made out beyond reasonable doubt. It is enough if probable cause, such as would justify a binding over for trial, be for defence adduced. To avoid, however, circuity and delay, and to prevent the process from being oppressively used, it is proper that the defendant should be allowed to produce evidence to show why he should not be surrendered.3

cause

enough. Evidence

admissible.

As an illustration of irregular arrest, see Exposito's Case, Alb. Law J., Oct. 15, 1881.

This important question can only be noticed briefly in the text. It is fully discussed in Whart. Conf. of Laws, § 839.

2 Whart. Conf. of Laws, §§ 842 et seq. That a sovereign can demand a person committing a crime on his territory from a sovereign to whom such party is

subject, see R. v. Ganz, 46 L. T. N. S. 592.

3 Whart. Conf. of Laws, §§ 851 et seq. As to English practice, see Piot, ex parte, 48 L. T. N. S. 120; R. v. Ganz, 46 L. T. N. S. 592.

That arrest may be in anticipation of warrant, see R. v. Weil, 47 L. T. N. S. 630.

For articles on the practice of extradition, see American Law Review for May and June, 1883.

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