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or sovereigns, conspiracy to promote insurrection or revolution in foreign states, or to assassinate the ruler of a foreign state do not appear to be punishable by national laws though they have been made the subject of international discussion and are indictable offenses in many countries. Some of these acts are punishable in state courts.49

It is not clear, however, just how far a nation is bound to suppress such acts in its territory. Field lays down in his International Code that: 50

"One who uses his asylum for prompting hostilities against a foreign country may be proceeded against under the law of the nation of his asylum, or may be surrendered to the nation aggrieved."

It does not appear, however, that American law recognizes an international responsibility either itself to punish such offenses or to aid the foreign government in punishing them. As has been noticed very few offenses against foreign states are punishable in the federal courts. The counterfeiting of foreign securities is the most important exception. The statutes relating to insurrection and conspiracy to destroy property abroad have been enacted for national defense rather than for the enforcement of international law. The same is true of the acts of Congress providing for the exclusion and deportation of alien anarchists and for the punishment of persons acting while the United States is at war so as "to bring the form of government of the United States into contempt, scorn, contumely and disrepute." Such alien, sedition, and espionage acts are for the protection of the United States rather than for the suppression of anarchy or sedition as an international crime." President Roosevelt in 1901 urged that "anarchy be declared an offense against the law of nations through treaties among all civi

49 Moore, Digest, 2: 430.

50 Field, Int. Code, sec. 207, p. 86.

51 Moore, Digest, 2: 430.

52 Alien Act, June 25, 1798 (for two years), I Stat. 570; Exclusion of seditious aliens, act Feb. 5, 1917, and expulsion of such aliens, act Oct. 16, 1918. Sedition act, July 14, 1798 (for two years), 1 Stat. 596; June 15, 1917, Title I, sec. 3, amended May 16, 1918, sec. 1 (for war period), 40 Stat. 353; Comp. Stat., sec, 102111. See Abrams v. U. S., 250 U. S. 616 (1919).

lized powers." This result has not been achieved, though a number of American extradition treaties, concluded thereafter, expressly exclude attempts against the life of the Head of a State from the category of political offenses.53

122. Sufficiency of Existing Legislation in Aid of Foreign Criminal Justice.

Nor has the United States held that there is any international duty to aid foreign criminal justice. Although Congress has provided, in pursuance of a generally recognized duty of comity, for the execution by Federal courts of letters rogatory from foreign states requesting the taking of testimony in "suits for the recovery of money or property," it has made no provision for the taking of testimony in criminal cases.54 The states also have generally refused to compel testimony for foreign criminal trials."

"The taking of testimony," said the Attorney-General of Pennsylvania, "by deposition for criminal cases is unknown to our system of jurisprudence, and section 9 of Article I of the Declaration of Rights in our Constitution provides that in all criminal prosecutions the accused hath the right to meet the witnesses face to face. I am, therefore, of the opinion that the courts of this Commonwealth are not competent to receive these letters rogatory and to enforce the testimony of this witness by deposition or answers to interrogatories, to be used in the criminal cause."

The same distinction has been recognized in reference to the execution of foreign judgments. In civil cases, the rule of reciprocity has been established by international comity, thus the federal courts carry out the judgments of foreign courts which will reciprocate. But not so with criminal judgments. The United States has never itself enforced a criminal judgment of a foreign state nor has it as a general practice turned over fugitives, accused or convicted of crimes in foreign courts, except on the express stipulation of treaty. The only exception to the rule appears to

57

63 Moore, Digest, 2: 434. See Treaties, Brazil, 1897, ratified 1903; Denmark, 1902; Guatemala, 1903; Spain, 1904; Protocol, 1907; Cuba, 1904.

54 Moore, Digest, 2: 110.

55 Ibid., 2: 112.

56 Hilton v. Guyot, 159 U. S. 113 (1895); Moore, Digest, 2: 217–224. 57 Moore, Digest, 2: 110; 4: 245 et seq.

be the case of Arguelles, who was extradited to Spain by President Lincoln in 1864, although no treaty required such action.58 The position of the United States has been that "both by the law and practice of nations, without a treaty stipulation, one government is not under any obligation to surrender a fugitive from justice to another government for trial," 59 and that "the President has no power to make the delivery' unless under treaty or act of Congress. Congress has passed acts in pursuance of treaties of extradition, but the opinion has been expressed that Congress might authorize extradition without treaty.61 Since such a law, with the above stated theory, could not be justified as the "punishment of an offense against the law of nations" it is difficult to see where the power of Congress would come from.

99 60

It has been held that the federal Constitution prohibits extradition under state authority unless such procedure is expressly stipulated in treaty or act of Congress. This is due to the express prohibition of the states from treaty-making or agreement-making without the consent of Congress.6

B. Enforcement by Action of the Treaty Power.

123. Treaties as a Basis for Executive and Judicial Action.

Treaties are the supreme law of the land and it might seem that they would in themselves furnish sufficient authority for executive or judicial enforcement of the obligations they impose. This is doubtless true of executive action. Courts have held that troops may be interned and persons extradited by executive authority on the basis of treaty alone. It has been held, however, that courts.

58 Ibid., 4: 249.

63

59 Mr. Buchanan, Sec. of State, to Mr. Wise, Sept. 27, 1845, Moore, Digest, 4: 246.

60 Wirt, Att. Gen., 1 Op. 509, 521; Terlinden v. Ames, 184 U. S. 270, 289 (1902); Moore, Digest, 4: 248, 253.

61 Willoughby, op. cit., p. 479.

62 Supra, sec. 90.

63 Ex parte Toscano, 208 Fed. 938; U. S. v. Robbins, Fed. Cas. No. 16175; In re Metzger, 5 How. 176, 188; Crandall, op. cit., 230 et seq.

cannot exercise criminal jurisdiction or compel the extradition of fugitives unless Congress has passed enabling legislation."

124. Treaties as a Basis for Congressional Action.

Treaty provisions requiring positive enforcement within American jurisdiction have been of three kinds. Sometimes they state definite acts which the government must prevent. Thus the V Hague Convention of 1907 says, "a neutral power must not allow any of the acts referred to in articles 2 to 4 to occur on its territory." 65 Sometimes treaties state the degree of diligence which the government must exercise to achieve a given result leaving it discretion in determining the method to be used. Thus article III of the Chinese treaty of 1880 affirmed by article IV of the treaty of 1894 requires the United States to "exert all its powers to devise measures for the protection (of resident Chinese) and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens or subjects of the most favored nation and to which they are entitled by treaty." 6 Finally, treaties sometimes merely require that the government endeavor to have legislation passed. Thus by article 27 of the Geneva convention of 1906:67

66

"The signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly for commercial purposes by means of trademarks or commercial labels. The prohibition of the use of the emblem or name in question shall take effect from the time set in each act of legislation, and at the latest five years after this convention goes into effect. After such going into effect, it shall be unlawful to use a trademark or commercial label contrary to such prohibition."

64 The Estrella, 4 Wheat. 298; The British Prisoners, I Wood. and Min. 66 (1845).

65 See also Submarine Cable Convention, 1884, art. II.

66 See also XIII Hague Convention, 1907, secs. 8, 25.

67 See also African Slave Trade Convention, 1890, art. xii, and Treaty of Peace with Great Britain, 1783, art. V. President Cleveland recommended legislation prohibiting the sale of arms in central Africa as required by the former, in his message of December 4, 1893, but Congress has not acted. (Moore, Digest, 2: 471.)

This has been the usual form in general international conventions. Although the obligation of Congress to act is doubtless greater under treaties of the first form than the last, it would appear that the difference is wholly one of degree. Under any of the three forms, the United States will be responsible if it fails to exert the diligence required by the treaty, and in none of them is criminal prosecution possible in the United States without enabling legislation.

C. Enforcement by the President.

125. Independent Powers of the President.

Although Congress has passed general laws giving the President power to use the military and naval forces and the militia to enforce the laws, suppress insurrection and repel invasion, and many special laws giving him power to use the forces for particular purposes, the President has always taken the view that these laws except as applied to the militia were unnecessary, and that as commander-inchief and as chief executive, he has independent power to employ the army and navy and direct the civil administration in order to execute the laws and treaties of the United States. President Fillmore in response to a resolution of inquiry called attention to the different position occupied by the President with reference to the militia, which may only be called out as Congress shall provide, and to the army and navy of which the President is permanent commander-in-chief. As to the latter, he said: 68

"Probably no legislation of Congress could add to or diminish the power thus given, but by increasing or diminishing, or abolishing altogether the army and navy."

By an act of June 18, 1878, Congress made it unlawful and a penal offense: 69

"to employ any part of the Army of the United States as a posse comitatus or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress."

68 Richardson, Messages, 5: 105; Finley-Sanderson, The Executive, p. 214; supra, sec. 119.

69 20 Stat. 152, sec. 15; Comp. Stat., sec. 1902; Finley-Sanderson, op. cit., p. 270.

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