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 jurisdiction 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."

2 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 O. 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 elsewhere, he becomes a fugitive from Justice when the crime is complete if not before. Strassheim v. Daily, 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 extra

threatened 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 coolie 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

territorial, except possibly in the matter of treason. In England, where no constitutional limitations can restrict the powers of Parliament, statutes of this sort are always upheld, and the only question is as to their construction, application, and general scope. In some of the English cases in which this power is recognized the act was done outside of England, but within the British dominions; but such statutes are also applied to acts which are done in foreign countries, even where a regular organized government exists." Such statutes are restricted by their terms to British subjects," and do not apply to alien friends or to alien enemies." Their scope has even been re

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mitted in foreign countries where by treaty such jurisdiction is ceded; (3) offenses committed on a desert island or uninhabited coast; (4) derelictions of duty by its ministers, consuls, or other representatives abroad. In other cases the criminal jurisdiction of the United States is limited to its own territory. Field, J., in U. S. v. Smiley, 6 Sawyer 640, 27 Fed. Cas. 16317.

This classification must, however, be understood as applicable to the statutes of the United States as they stood when such classification was made, and not to the power of the United States which might be exercised in the future.

6 Regina v. Keyn, 2 Exch. Div. 63; U. S. v. Kessler, 26 Fed. Cas. No. 15528, Baldwin 15; Phillipi v. Bowen, 2 Pa. St. 20.

Englishmen who attacked English vessels on the high seas were found guilty of treason as well as of piracy. See reference in 40 Liber Assisarum, pl. 25.

• Colepepper's Case, 1 Vent. 349; King v. Speke, 3 Salk 358; Regina v. Azzopardi, 1 C. and K. 203; Regina v. de Zulueta, 1 C. and K. 215; Rex v. Sawyer, 2 C. and K. 101, Russ. and Ry. 294.

Colepepper's Case, 1 Vent. 349; King v. Speke, 3 Salk 358.

Under 9 Geo. IV, c. 31, sec. 7, a British subject (in this case a native of Malta) could be tried under a special commission for the murder of a subject of the Dutch Government at Malta, which was then part of Her Majesty's dominions. Regina v. Azzopardi, 1 C. and K. 203.

10 It was said that the statute which provided for punishing those engaged in the slave trade applied to acts done by British subjects in places which were not part of the British dominions. Regina v. de Zulueta, 1 C. and K. 215.

The same construction was required by 6 and 7 Vict., c. 98, which was passed between the commission of the alleged offense in Regina v. Zulueta and the trial. See Santos v. Illidge, 6 C. B. (N. S.) 841 (859).

Under 33 Hen. VIII, c. 23, a British subject may be tried in the courts of England for murdering a British subject in a foreign State (here in Portugal). See unreported cases cited in argument of counsel and opinion. Rex v. Sawyer, 2 C. and K. 101, Russ, and Ry. 294. 33 Hen. VIII, c. 23, provided "that the King might issue a commission to try the offender in case of treason or murder within or without his dominions." Such statute was repealed, 9 Geo. IV, c. 31. For provisions in place of above see 9 Geo. IV, c. 31, sec. 7.

Under 24 and 25 Vict., c. 100, sec. 57, which provided that "whosoever being married shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony," an English subject can be punished in England for marrying in the United States in violation of this statute. Trial of Earl Russell (1901), A. C. 446. 11 Ping v. Depardo, 1 Taunt. 26; Rex v. De Mattos, 7 C. and P. 458.

12 Under 9 Geo. IV, c. 31, sec. 7, which provides for the trial of English subjects for murder or manslaughter committed by them on land out of the United Kingdom, whether within the IKng's dominion or without, a Spaniard who has become a member of the crew of an English vessel, but who is then acting as interpreter for the original captain of such vessel (who had set up in trade at Zanzibar) with the consent of the new captain of such vessel, can not be tried in the courts of England for manslaughter which was committed by striking a blow while on shore at Zanzibar, the injured person, a member of the crew, dying on board the vessel, which lay a few hundred yards from Zanzibar in 7 fathoms of water. Rex v. De Mattos, 7 C. and P. 458.

13 Under 33 Hen. VIII, c. 23, an alien enemy, who had been a prisoner of war, who had entered as a volunteer on an English vessel in the service of the East India Co., and having letters of marque, killed an Englishman who was a member of the crew of such vessel, the blow being struck while they were both on shore near Canton, and the deceased dying on board the English vessel. It was apparently held, though without opinion, that such allen enemy could not be tried in England; the court eventually discharging him. King v. Depardo, 1 Taunt. 26.

stricted to the natural-born British subject as contradistinguished from the naturalized subject."

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In the United States the validity of such statutes has generally been assumed without much discussion. No constitutional provision seems to stand in the way of such legislation. The provision of the sixth amendment to the Constitution of the United States, which provides for the trial of the accused in the State and district where the crime shall have been committed, applies only to crimes committed within a State," and does not apply to crimes which are not committed within the territory of the United States." The suggestion 18 that such legislation would conflict with the preamble to the Constitution of the United States which provides that the Constitution is ordered and established to "insure domestic tranquility" is probably not to be taken seriously. Our courts have upheld statutes which are intended primarily for the protection of the State, such as statutes which provide for punishing offenses against the election laws of such State even if committed by a subject in another State;" for punishing acts which are especially shocking to the standards of feeling of the State, such as an intermarriage between subjects of the State of different races, even though such marriage is solemnized in another jurisdiction where it is valid, and for punishing acts which are injurious primarily to the interests of other subjects of the State, such as a theft committed by one subject from another subject in another jurisdiction."

2. From a relatively early period the jurisdiction of the courts of admiralty had made the English law familiar with the power of a State over vessels sailing under its flag as well as over pirates. Accordingly, of the extraterritorial statutes which apply to the doing of an act, actually or constructively in the State which seeks to punish the doing of such act, or to the existence of a condition in such State or to the continuance of such condition, those whose validity is most thoroughly established in our law are the statutes which apply to an act done on a vessel which sails under the flag of the State which seeks to punish it," or to an act done upon or by a pirate ship." This power is ex

14 The court held that only a natural-born British subject could be tried by special commission under 9 Geo. 4, c. 31, sec. 7, for killing another British subject in a duel in France. Rex. v. Helsham, 4 C. and P. 394.

15 Ex parte Kinney, 3 Hughes 9; Commonwealth v. Gaines, 2 Va. Cases 172; State ex rel. Chandler v. Main, 16 Wis. 398.

"It is admitted that it is competent for a State to legislate rules of conduct for its citizens while resident beyond its territorial limits." Holmes, J., in dissenting opinion; Commonwealth v. Gaines, 2 Va. Cas. 172.

18 U. S. v. Dawson, 15 How. 467.

17 Cook v. U. S., 138 U. S. 157; U. S. v. Arwo, 19 Wall. 486. See also In re Ross, 140 U. S. 453, as to trial on indictment by jury, etc.

18 In re Fowles, 89 Kans. 430 (1913).

10 State ex rel. Chandler v. Main, 16 Wis. 398.

20 Ex parte Kinney, 3 Hughes 9. See also Kinney v. Commonwealth, 30 Gratt. (Va.) 858, where, on similar facts, the crime charged was unlawful cohabitation in Virginia.

21 Commonwealth v. Gaines, 2 Va. Cases 172.

22 St. Clair v. U. S., 154 U. S. 134; Andersen v. U. S., 170 U. S. 481; Regina v. Dillon, 11 New Bruns. (6 Allen) 61. This act, however, must be one which, in legal theory at least, is performed upon such vessel. U. S. v. McGill, 4 Dall. 426; U. S. v. Davis, 2 Sumner 482. Compare U. S. v. Pirates, 5 Wheat. 184; U. S. v. Bevans, 24 Fed. Cas. No. 14589.

23 U. S. v. Holmes, 5 Wheat. 412; U. S. v. Pirates, 5 Wheat. 184; U. S. v. Klintock, 5 Wheat. 144.