aspect, otherwise to be harassed by innumerous conflicts with that mixed population, rough in their habits, as first settlers sometimes are. It is quite a policy of prudent judiciousness. The mother state of the first settlers dislikes to be intricated in collisions with all other states by the differences of those inhabitants of adventurous fore-life, differences either between each other or between the civilized population and the natives. But this policy of safe prudence should not be regarded precedentially a prejudice to the principle of the right of the state to assume extraterritorial criminal jurisdiction over unsettled and uncivilized lands, where no jurisdiction of any state yet exists.

(B) This principle is valid, so much the more, as to such barbarous or unsettled lands, as are not even inhabited by any civilized people, nor recognized by treaty with any state.

(y) An offspring of that principle is the consular judiciary system in remote states, though civilized, but far inferior to our civilization.

(6) Jurisdiction of all states over the high seas had been crystallized in the theory that a ship at sea is regarded in international law as a portion of the state the flag of which she bears; and the consequence of this generally acknowledged theory is, that "crimes committed on board a ship on the high seas are triable only by the authorities of the country to which she belongs;" no matter whether it be a public ship or a merchant vessel. (With some exceptions [1, As to offenses against international law; and, 2, As to merchant vessels within the marine belt, the port, etc.;] we shall have to deal below).

(b) As to the nature of offenses. (Offenses against international law.) Dependent upon the theory, stated in C 2 of this chapter, is the general rule of international law, that an offender against international law, on account of being an enemy to mankind, may be punished by any state getting first hold of him.

"Offenses against the law of nations, wheresoever and by whomsoever committed, are within the cognizance of the judicial power of any state." (Halleck and other text-writers.)

(c) As to persons. (Subjects everywhere.)

Every state may assume extraterritorial criminal jurisdiction over its subjects irrespective of their place of sojourning. The reason of that international understanding seems to be this: A person sojourning at a foreign country, without being naturalized there, may, after some time, change his place of residence again, emigrate to another country, and finally return to his mother country. Such emigrants, belonging to the "floating population," easily could escape every responsibility for foul deeds committed abroad should they be thought separated from their original allegiance to the laws of their mother country, while living abroad as unnaturalized foreigners. In traveling between countries not provided with extradition treaties, said people would

enjoy full immunity, could they not be held, at least, responsible at home, for their acts committed abroad. A subject of the state remains, therefore, subject to its laws, as long as he did not renounce allegiance to that state in behalf of another one. And, likewise, as a good family takes care that its children, when on a visit, behave themselves, so a state is bound by honor and self-respect, to provide that its subjects, when abroad, don't commit an act that would be indictable, when committed at home.

Germany, for instance, goes so far as to punish Germans for violently resisting abroad a foreign public officer, while the latter is on duty. Germany punishes in general, Germans for committing offenses in foreign countries, when such offenses were punishable as well by the laws of the place of commission as by German law, provided the case was not yet settled (a) by acquittal in that foreign country, or (b) by punishment as pronounced by that foreign court, or (c) by pardon in that foreign country, or (d) by statute of limitation of that foreign country, or (e) by omission, on the part of the injured party to file a petition, should such initiative be necessary in that foreign country for entering suit. See §§4, 3 and 5 of the German penal code.

And in compensation thereof, Germany, by §§9 of her penal code declares :

"A German shall not be extradited to a foreign government for prosecution or punishment."

If a German committed a crime abroad and returned then to Germany, he can not be extradited, but he will be prosecuted in Germany, and tried on the face of the evidence, furnished by any foreign government and produced or legalized by the foreign German diplomatic or consular service.

If some countries do not assume extraterritorial criminal legislation over their subjects abroad to a large degree, their attitude is guided by the belief, that all civilized countries are interested alike in punishing offenses; they refrain from extending their jurisdiction, in general, over subjects abroad, because of their surety that their subjects abroad would be punished abroad, should they commit there an offense; and in the worst case "extradition may help such subject to deserved punishment, should he escape justice for a time.

But we should not rely on extradition; first, because that matter lies everywhere in a wholly unsettled shape; and second, because the high expenses of extradition seldom warrant such course.

The necessity of assuming, on the part of the state, extraterritorial criminal jurisdiction over its subjects abroad, may appear from the fol lowing:

If a fugitive from justice, a subject of the State A comes into the State B, the sovereign of State B has at least the right, should he deem it necessary or advisable, to expel such foreign fugitive, and so the possibility of the fugitive going back to the place of commission of offense

can be assumed. But if that fugitive from justice, escaping from State A to State B, is a subject of the latter State, his sovereign can not (for instance, not if the latter State B be Germany, as was shown above) under existing laws extradite him, nor could his sovereign-according to the laws of many states-expel him. Thus, if State B did not assume extraterritorial criminal jurisdiction over its subjects abroad, such subjects of State B would be, in fact, in possession of a charter of immunity abroad, provided they were skillful or smart enough to escape justice and leave the country where they committed the crime and return to their mother country.

If the fugitive from justice, whose extradition can not be effected either on account of lack of treaty or on account of the big expensesis a subject of the state, on the soil of which the crime was committed, that fugitive damaged or injured his own country, and such country must acquiesce in the loss by her subject. But it is a strange insinuation that a state should be forced into suffering from injury by an alien escaping justice. The question may therefore be raised, if it were not opportune, to convert the right of the state of assuming extraterritorial criminal jurisdiction over subjects, into international duty, especially of those states denying extradition of subjects.

Such duty could, of course, be only a secondary one, that is to say, the state should assume jurisdiction over offenses committed by subjects abroad, only in the case where the "privilege of priority" of the state, in which the crime was committed, can not be exercised, and under restrictions similar to those shown in the German statute quoted above (page 19).

To those denying the right of extraterritorial criminal jurisdiction over subjects at all and at any rate, the following remarks are directed: It is generally held that a state is bound by honor and duty to protect its subjects abroad. This duty of protection implies, as a compensation thereof, the right of calling for account the protected ones if they turn offenders. No duty without right, and no right without duty. Protection on the one side means allegiance on the other side. The state's criminal jurisdiction over subjects abroad can not be defeated by any shadow of judicial argument.

3. ON MUTUAL CONSENT OF THE STATES.

(a) Diplomatic representatives.

(b) Public vessels.

As to this part of extraterritorial criminal jurisdiction a wide difference of opinion exists between certain states.

In general, extraterritoriality is granted to diplomatic representants (including the secretary of legation) and public vessels.

But some countries, as Germany, exempt from the right of extrater ritoriality the residence of foreign ministers. (See sentence of the German supreme court 20, November, 1880, Crim. Decisions 3, 70.)

On the other hand, some countries, as Belgium, often try to secure to their merchant ships, while in foreign harbor, the right of extraterritoriality, generally accorded to public vessels only.

The United States, however, in both alleged cases, take the opposite ground. They concede extraterritoriality to the residence of foreign ministers and deny it to foreign merchant vessels in American harbor, marine belt., etc.

D. LEGISLATION OF THE UNITED STATES IN BEHALF OF "EXTRATERRITORIAL CRIMINAL JURISDICTION UNDER AUTHORITY OF INTERNATIONAL LAW."

Aa.-PRESIDENT CLEVELAND'S MISTAKE.

The United States made, indeed, a very moderate use of their right awarded by international law, to legislate on foreign offenses, especially on foreign offenses against the "safety, order, and peace of the state," (Union). But at all means that legislation of the United States is a sufficient proof of their full acknowledgment of the principle itself, that the state is entitled to protect itself against foreign injury, and that, to a certain degree, international law warrants extraterritorial criminal jurisdiction.

When President Cleveland in his message to Congress (see chapter I, page 10) asserted

Whatever the degree to which extraterritorial criminal jurisdiction may have been formerly allowed by consent and reciprocal agreement among certain of the European states, no such doctrine or practice was ever known to the laws of this country, or of that from which our institutions have been mainly derived.

he was greatly mistaken. The Revised Statutes of the United States exhibit lots of cases of legislation for extraterritorial criminal jurisdiction, as will be shown in the next division.

Bb.-LEGISLATION ON EXTRATERRITORIAL CRIMINAL JURISDICTION TO BE FOUND IN THE REVISED STATUTES OF THE UNITED STATES.

1.-For self-defense and safety of the state.

SEC. 5353. “Every person who, knowingly, transports or delivers or causes to be delivered nitro-glycerine or powder mixed with oil, on board any vessel or vehicle whatever, employed in conveying passengers by land and water between any place in a foreign country and any place of the United States, shall be punished," etc. Section 5354 fixes the punishment for the case in which such transportation of explosives had caused the of death a person. Section 5355 defines the manner in which transportation of explosives is allowed.

Said section 5353 is a first-class proof of assumption by the United States of extraterritorial criminal jurisdiction over foreign offenses against the safety of the state and its citizens.

The word "transport" can, indeed, be construed so as to refer to an

act consummated in this country, and so can the words "causes to be delivered," but " delivering explosives on board a vessel or vehicle" conveying passengers "between a foreign country and the United States" means, without any doubt, an act committed abroad, an act committed on foreign shores, from which the vessel started, especially when such vessel was a foreign merchant ship, bearing the flag of a foreign country; and "delivering" explosives on board a vehicle, conveying passengers between "a foreign country and the United States," means the staying of such vehicle, at the time of delivering the explosives, on foreign soil.

An offense against section 5353 thus is punishable when committed abroad as well as when committed in the United States, irrespective of the offender being a subject of this or of the foreign country; section 5353 deals with "every person.”

"Delivering" explosives, f. i., on board the Alaska at Liverpool, England, or at a depot of a Mexican railroad centering at the American border, is punishable in this country according to section 5353, save the "privilege of priority of jurisdiction" on the part of Great Britain or Mexico, should it be claimed by them.

Had it been the intention of the legislator to confine punishableness of "delivering" to an act committed within this country, section 5353 would read as follows:

66* * *

* conveying

between any place of the United States and any place of a foreign country," and not "between any place of a foreign country and any place of the United States."

At any rate section 5353 is to be construed so as to include a foreign merchant ship, while lying at a foreign dock and preparing to start for the United States.

(Moreover, see Wharton, Crim. Law, on "Liability of extraterritorial principal," as indicated on page 15.)

2.—In the interest of mankind.

(a) As to places.-(a) Half-civilized, uncivilized, and unsettled lands. Sections 4083-4087 devolve judicial authority on American ministers and consuls in certain non-Christian countries (China, Japan, Siam, Egypt, Madagascar) where American citizens live. "Such jurisdiction shall embrace all controversies between citizens of the United States or others, provided for by such treaties, respectively." (4085.) “Jurisdiction in both criminal and civil matters." (4086.)

Section 4088 devolves the same power on United States consuls and commercial agents in countries not inhabited by any civilized people or recognized by any treaty with the United States; they have the right to try misdemeanors, and in civil cases the power of a justice of the peace in the United States.

Sections 5570-5578 declare the claim of the United States to any island, rock, or key on which a citizen of the United States discovered