§ 618. But there is still a very essential and important distinction between the two. Domestic judgments rest upon the conclusive force of the record, which is absolutely unimpeachable. Foreign judgments are mere matters en pais, to be proved the same as an arbitration and award, or an account stated; to be established, as matter of fact, before the jury; and by consequence subject to any contradiction or impeachment, which might be urged against any other matter resting upon oral proof. Hence any fraud which entered into the concoction of the judgment itself is proper to be adduced, as an answer to the same; but no fraud which occurred and was known to the opposite party before the rendition of such foreign judgment, and which might therefore have been brought to the notice of the foreign court, can be urged in defence of it.

§ 618 k. It is proper to add, that while the English courts thus recognize the general force and validity of foreign judgments, it has been done under such limitations and qualifications, that great latitude still remains for breaking the force, and virtually disregarding such foreign judgments, as proceed upon an obvious misapprehension of the principles governing the case; or where they are produced by partiality or favoritism, or corruption, or where upon their face they appear to be at variance with the instinctive principles of universal justice. But these are the rare exceptions.]

CHAPTER XVI.

PENAL LAWS AND OFFENCES.

[* § 619. Penal laws and offences.

§ 620. The operation and effect of such laws strictly local.

§ 621 – 624. This rule prevails extensively in different countries.

§ 625. Some of the foreign jurists claim a different rule.

625 a. But the American states adhere to the limitations stated.
One who acts, through an innocent agent, considered present.

§ 625 b.

§ 625 c. So one who operates by inanimate agencies.

§ 626. Surrendering fugitives from justice matter of comity.

§ 627. Sometimes claimed as matter of duty and obligation.

§ 628. Various and conflicting opinions stated.

§ 628 a. Discussion of principles involved.]

1 2 Story, Eq. Ju. § 1575 - 1584, and cases cited. Boston India Rubber Factory v. Hoit, 14 Vt. R. 92.]

§ 619. WE are next led to the consideration of the operation of foreign laws in regard to penalties and offences. And this will not require any expanded examination, as the topics are few, and the doctrines maintained by foreign jurists and by tribunals acting under the common law involve no intricate inquiries into the peculiar jurisprudence of different nations.

$620. The common law considers crimes as altogether local, and cognizable and punishable exclusively in the country, where they are committed. No other nation, therefore, has any right to punish them; or is under any obligation to take notice of, or to enforce any judgment, rendered in such cases by the tribunals, having authority to hold jurisdiction within the territory, where they are committed.2 Hence it is, that a criminal sentence of attainder in the courts of one sovereign, although it there creates a personal disability to sue, does not carry the same disability with the person into other countries. Foreign jurists, indeed, maintain on this particular point a different opinion, holding, that the state or condition of a person in the place of his domicil accompanies him everywhere.3 Lord Loughborough in declaring the opinion of the court on one occasion said: "Penal laws of foreign countries are strictly local, and affect nothing more than they can reach, and can be seized by virtue of their authority. A fugitive, who passes hither, comes with all his transitory rights. He may recover money held for his use, and stock, obligations, and the like; and cannot be affected in this country by proceedings against him in that, which he has left beyond the limits of which such proceedings do not extend." Mr. Justice Buller, in the same case, on a writ of error, said: "It is a general principle, that the

1 "Crimes (said Lord Chief Justice De Gray, in Rafael v. Verelst, 2 Wm. Black. R. 1058) are in their nature local, and the jurisdiction of crimes is local.” 2 Rutherf. Inst. B. 2, ch. 9, § 12; Martens, Law of Nations, B. 3, ch. 3, § 22, 23, 24, 25; Merlin, Répertoire, Soéveraineté, § 5, n. 5, 6, p. 379 to 382; Commonwealth v. Green, 17 Mass. R. 515, 545, 546, 547, 548.

3 Ante, § 91, 92; 1 Hertii, Opera, de Collis. Leg. § 4, n. 8, p. 124, edit. 1737; Id. p. 175, edit. 1716; 1 Boullenois, Obs. 4, p. 64, 65. - Boullenois states this doctrine in strong terms. "A l'égard des statuts, qui prononcent une morte civile pour crimes, ou une note d'infamie, l'état de ces misérables se porte par tout, indépendament de tout domicile; et cela par un concert et un concours général des nations, ces sortes de peines étant une tache, une plaie incurable, dont le condamné est affligé, et qui l'accompagne en tous lieux. C'est ce que dit D'Argentré." 1 Boullenois, Observ. 4, p. 64, 65.

2 Folliott v. Ogden, 1 H. Black. p. 135.

penal laws of one country cannot be taken notice of in another."1 The same doctrine was affirmed by Lord Ellenborough in a subsequent case. And it has been recently promulgated by Lord Brougham, in very clear and authoritative terms. "The lex loci (says he) must needs govern all criminal jurisdiction from the nature of the thing and the purpose of the jurisdiction." 3

§ 621. The same doctrine has been frequently recognized in America. On one occasion, where the subject underwent a good deal of discussion, Mr., Chief Justice Marshall, in delivering the opinion of the Supreme Court, said: "The courts of no country execute the penal laws of another."4 On another occasion, in New York, Mr. Chief Justice Spencer said: "We are required to give effect to a law (of Connecticut,) which inflicts a penalty for acquiring a right to a chose in action. The defendant cannot take advantage of, nor expect the court to enforce, the criminal laws of another state. The penal acts of one state can have no operation in another state. They are strictly local, and affect nothing more. than they can reach." 5 Upon the same ground also, the Supreme Court of Massachusetts have held, that a person convicted of an infamous offence in one state, is not thereby rendered incompetent as a witness in other states. [So, in a late case in chancery, a foreigner in England was not allowed to withhold certain documents, whose production was sought by a bill of discovery, upon the plea that their contents would render him liable to the penal laws of his own country; they having no such effect in England, and the courts of the latter country having no regard to the penal laws of a foreign state.]

§ 622. The same doctrine is stated by Lord Kames as the doctrine in Scotland. "There is not (says he) the same necessity for an extraordinary jurisdiction to punish foreign delinquencies. The proper place for punishment is, where the crime is commit1 Ogden v. Folliott, 3 T. R. 733, 734.

2 Wolff v. Oxholm, 6 M. & Selw. R. 99.

* Warrender v. Warrender, 9 Bligh, 119, 120. The Antelope, 10 Wheat. R. 66, 123.

Scoville v. Canfield, 14 Johns. R. 338, 340. Taylor's N. C. Rep. 65.

6

See also The State v. Knight,

Commonwealth v. Green, 17 Mass. R. 515, 540, 541, 546, 547. [Contra in North Carolina, State v. Chandler, 3 Hawks, 393; Chase v. Blodgett, 10 New Hampshire, 22.]

King of Two Sicilies v. Wilcox, 1 Simons, N. S. 301.

ted. And no society takes concern in any crime, but what is hurtful to itself."1

§ 623. The same doctrine is laid down by Martens, as a clear principle of the law of nations. After remarking, that the criminal power of a country is confined to the territory, he adds: "By the same principles, a sentence, which attacks the honor, rights, or property of a criminal, cannot extend beyond the courts of the territory of the sovereign who has pronounced it. So that he, who has been declared infamous, is infamous in fact, but not in law. And the confiscation of his property cannot affect his property situate in a foreign country. To deprive him of his honor and property judicially there also, would be to punish him a second time for the same offence." 2

§ 624. Pardessus has affirmed a similar principle. "In all the states of christendom, (says he,) by a sort of general consent and uniformity of practice, the prosecution and punishment of penal offences are left to the tribunals of the country where they are committed. The principle of the French legislation, that the laws of police and bail are obligatory upon all, who are within the territory, is a principle of common right in all nations."3 Bouhier also admits the locality, or, as he terms it, the reality of penal laws; and of course he limits their operation to the territory of the sovereignty, within which they are committed.*

§ 625. On the other hand Hertius, and Paul Voet, seem to maintain a different doctrine, holding, that crimes committed in one state may, if the criminal is found in another state, be upon demand punished there.5 Paul Voet says: Statutum personale 1 Kames on Equity, B. 3, ch. 8, § 1. See also Ersk. Inst. B. 1, tit. 2, p. 23. * Martens, Summary of the Law of Nations, B. 3, ch. 3, § 24, 25. Pardessus, Droit Comm. 5, art. 1467.

raineté, § 5, n. 5, 6, p. 379 to 382.

See also Merlin, Répertoire, Souvé

* Bouhier, Cout. de Bourg. ch. 34, p. 588. See also Matthæi, Comm. ad Pand. Lib. 48, tit. 20, § 17, 18, 20. Mr. Hallam has remarked: "The death of Servetus, has, perhaps, as many circumstances of aggravation, as any execution for heresy, that ever took place. One of these, and among the most striking is, that he was not the subject of Geneva, nor domiciled in the city, nor had the Christianissima Restitutio been published there, but at Vienne. According to our laws, and those, I believe, of most civilized nations, he was not answerable to the tribunals of the republic." Hallam's Introduction to the Literature of Europe, Vol. 2, (Lond. edit. 1839,) cap. 2, § 27, p. 109.

' Hertii, Opera, De Collis. Leg. § 4, n. 18 to n. 21, p. 130 to 132, edit. 1737; Id. p. 185 to 188, edit. 1716.

ubique locorum personam comitatur, &c., etiam in ordine ad pænam a cive petendam, si pœna civibus sit imposita." And he, as well as some others of the foreign jurists, enters into elaborate discussions of the question, whether, if a foreign fugitive criminal is arrested in another country, he is to be punished according to the law of his domicil, or according to the law of the place, where the offence was committed.2 If any nation should suffer its own courts to entertain jurisdiction of offences committed by foreigners in foreign countries, the rule of Bartolus would seem to furnish the true answer. Delicta puniuntur juxta mores loci commissi delicti, et non loci, ubi de crimine cognoscitur.3

[§ 625 a. The doctrine that one state will not notice the penal laws, or revenue laws of another state, is, however, to be understood with some limitation, and cannot be extended so far as has sometimes been supposed. Thus, in a late case in New Hampshire, a citizen of that state brought an action of trespass against a citizen of Vermont, to recover damages for assessing the plaintiff with an illegal tax, and issuing a warrant against him upon which he was arrested. The defendant relied upon a want of. jurisdiction in the courts of New Hampshire, to inquire into the matter. And the learned Chief Justice Parker, in pronouncing judgment upon this point observed: "It is said that the court will not notice the penal laws, or the revenue laws, of another state. But this principle is not applicable in this case, nor can it be true.

1 P. Voet, de Statut. § 4, ch. 2, n. 6, p. 123, edit. 1715; Id. p. 138, edit. 1661. See Id. § 11, ch. 1, n. 4, 5, p. 294 to 296, edit. 1715; Id. p. 355 to 360, edit.

1761.

* See 1 Hertii, Opera, De Collis. Leg. § 4, n. 19 to n. 21, p. 131, 132, edit. 1737; Id. p. 185 to 188, edit. 1716; P. Voet, de Stat. § 11, ch. 1, § 1, 4, 5, p. 291 to 297, edit. 1715; Id. p. 355 to 360, edit. 1661.

3 Henry on Foreign Law, p. 47. I quote the passage as I find it in Henry. Upon examining Bartolus in the place apparently intended to be cited by Mr. Henry (Bartolus, Comm. ad Cod. Lib. 1, tit. 1, lib. 1, n. 20, 21; Id. n. 44; Id. n. 47, Tom. 7, p. 4, edit. 1602,) I have not been able to find any such language used by Bartolus. Martens deems it clear, that a sovereign in whose dominions a criminal has sought refuge, may, if he chooses, punish him for the offence, though committed in a foreign country; though he admits, that the more common usage in modern times is to remand the criminal to the country, where the crime was committed. Martens, Law of Nations, B. 3, ch. 3, § 22, 23. See also Vattel, B. 2, ch. 2, § 76; Grotius, De Jure Belli et Pac. B. 2, ch. 21, § 2, 3, 4, 5; Burlemaqui, P. 4, ch. 3, § 24, 25, 26. See Lord Brougham's opinion in Warrender v. Warrender, 9 Bligh, R. 118, 119, 120.