For, on the one hand, the designation of an offense embraces not only the accomplished crime, but also the attempted crime, and, on the other hand, the duty of extradition is frequently extended in extradition treaties with foreign states in a broader or narrower sense, also to attempted offenses of an extraditable nature. . . . and there can be no doubt that in the relation of the cantons to each other the duty of extradition is not intended to be more limited than is the case with regard to foreign countries (R. O. 6, p. 209/10). (e) The principle of the specialty of extradition holds also in intercantonal relations, but naturally not to a greater extent than in the relations of Switzerland with foreign countries. According to this, the accused person may be punished, not only for the act for which extradition is demanded and granted, but also for acts which are in "a closer relation" to that act, that is, for connected acts. (f) In accordance with established practice, based upon positive regulations of Federal law, the accused person may make complaint before the Federal Court against the non-observance of extradition procedure. (Cf. R. O. 3, p. 249; also 25, I, p. 447; 32, I, p. 85; 41, I, p. 508). The complaint is directed against the prosecuting canton on the ground that before instituting a criminal prosecution it should have resorted to extradition proceedings. Such a complaint may be made at any stage of the criminal procedure (R. O. 14, p. 47; 27, I, p. 48; 29, I, p. 456; 30, I, p. 687; 42, I, p. 381). Nevertheless, the Federal Court refused to admit an appeal, because the appellants could not be regarded as "legally prosecuted," before the opportunity was had by the examining judges who, according to the law of Fribourg, were competent "to assign the true character to the offense" (R. O. 15, p. 116). But the prosecuted private person can not derive from the law of extradition any guarantee of having a certain court assigned for the trial of the offense charged against him. His right is limited to demanding the observance of the prescribed procedure; "that is, by refusing to recognize the extradition, he may require the canton requested therefor to render a decision in this matter; but he does not possess any right which materially affects this decision" (R. O. 32, I, p. 85). A third private person, for example, the injured person, has of course no right to demand that extradition be accorded (R. O. 6, p. 80; 9, p. 162; 41, I, p. 508). B. Other legal assistance in criminal law The Federal Court has determined that there exists among the cantons an obligation arising from "old Confederate practice" to accord legal assistance in inquiry proceedings and the execution of letters rogatory. This duty is prescribed by no law, but it has been developed by the Federal Court from the Federal law of February 2, 1872, amending the Law of Extradition, which provided that such actions of legal assistance be performed on the basis of comity. The obligation of according legal assistance is not limited to the crimes and offenses enumerated in the Extradition Law of 1852. It exists also if the offense in question is not punishable in the demanding canton; "for in lending legal assistance, the application of the criminal law of the demanding canton, and not of the requested canton, is supported" (decision of February 10, 1886, in the case of Berne v. Schaffhausen) (R. O. 12, p. 49). In the decision of March 16, 1910, in the case of Solothurn v. Uri, this position was supported, principally for the following reasons: The obligation of lending legal assistance has its internal basis in the solidarity of the States which cultivate the same system of law with regard to preventing crimes. The exceptions to the obligation of lending legal assistance are based upon the lack of confidence of one State in the justice of the administration of law in the other State. This exception is denied in theory, even in international law. But within a Federal State there should be no room for such lack of confidence, not even if the material and formal criminal law of the individual members does not always agree in content, as in the case of Switzerland. In this regard it must not be forgotten that the refusal of legal assistance cannot rescind the penal prosecution or make it ineffective; but the result of the investigation will suffer by such refusal, and it would be possible that because of defective examination, for instance, a person other than the one who is in reality guilty might be condemned (R. O. 36, I, p. 54). For practical reasons, too, the court stated, a digression from the precedent established in 1886 was impossible, since the practice of most of the cantons has shaped itself accordingly. Furthermore, "with the growth of modern intercourse, the need of general legal assistance has become much more pressing than was the case at the time of the rendition of the aforementioned decision" (R. O. 36, I, p. 54/5).12 6. THE CONFLICT OF THE LAWS OF DIFFERENT CANTONS A conflict of cantonal law takes place primarily when Swiss citizens reside in a canton other than their home canton. A dispute arose on the question as to whether the laws of the home canton or of the canton of residence are applicable in such cases. Thus, the first cases of double taxation arose from the fact that both cantons taxed such persons. A. Double taxation By double taxation is meant the simultaneous taxation of the same subject and of the same object by two cantons with the same taxes. The Federal Constitution of 1848 contained no prohibition against double tax 12 At all events, the question was left open whether, in view of Article 67 of the Federal Constitution (vide supra, p. 180), the obligation of lending legal assistance holds also for political and press offenses, as well as for offenses not committed within the demanding canton. ation. Federal practice originally recognized the unlimited sovereignty of the cantons in the matter of taxation (Ullmer, I, No. 111, 114-117, 126-127). But in time, Federal practice declared double taxation to be inadmissible in Federal law for the reason that it is in contradiction to the principles of the freedom of domiciliation expressed in the Federal Constitution (Article 41), of equality before the law (Article 4), of the equality of citizens of one canton with the citizens of others (Article 48), etc. The principle that valid decisions in civil law which have been rendered in one canton may be executed throughout Switzerland (Article 49), was declared to be inapplicable to taxation cases (Ullmer, I, No. 128, 129-134). The right of the citizen, too, to make complaint because of double taxation has been recognized (Ullmer, I, No. 694). The Federal Constitution of 1874 contained the following provision in Article 46, paragraph 2: "Federal legislation will make the necessary provisions against double taxation." Such a Federal law has up to the present not been adopted, but the Federal Court in an extraordinarily abundant practice has developed the principles against double taxation. This is not a suitable occasion to discuss them, not only because such a discussion would transcend the bounds of this treatise, but also because of the reasons explained at the outset (vide supra, p. 153). Some of the more important principles have already been mentioned.13 B. Further cases Finally, the decisions of the Federal Court will now be mentioned which have been rendered in public law disputes between cantons and which deal with the intercantonal delimitation of jurisdiction in the field of guardianship and inheritance. According to Article 46 of the Federal Constitution, a Federal law is to regulate the legal relations of domiciled persons in such a way that usually they will be subject to the law and the legislation of their place of domicile. Prior to the adoption of this law, which did not take place until June 25, 1891, the cantons were unrestricted in this matter, and the Federal Court frequently determined that each canton, by virtue of its sovereignty, has the right to apply its own legislation with regard to persons domiciled in its territory. In accordance therewith it was decided that each canton is empowered in Federal law to subject the citizens of other cantons residing in its territory, their persons and their property, to its legislation and jurisdiction in matters of guardianship; but that the home canton is not prevented from applying to its citizens its legislation with regard to guardianship, at least in so far as its territorial sovereignty extends, that is, with respect to the property situated in its territory (R. O. 11, p. 19; 3, pp. 29, 33; 5, p. 426; 8, p. 728; 13, p. 398; 15, p. 697). 13 There is a discussion of this practice in Burckhardt, Kommentar, p. 419 et seq. A suit of the Canton of Schwyz to the effect that the Canton of Zurich be compelled to refuse domiciliation to a national of the Canton of Schwyz who was under guardianship, was rejected by the Federal Court on October 21, 1909. Article 45 of the Federal Constitution empowers the cantons in certain cases to refuse domiciliation to persons who are not citizens of the canton. If it pleases a canton, by virtue of its sovereignty, to grant permission for domiciliation or sojourn, even in a case in which according to Article 45 of the Federal Constitution it would be justified in a refusal thereof, no other canton has the right to protest this action (R. O. 35, I, p. 666). At any rate, a canton in which a person under guardianship is sojourning without the permission of his guardian or competent court for the protection of wards, may under circumstances be obligated "to grant the necessary legal assistance for the execution of decrees of an extra-cantonal court for the protection of wards" (p. 666/7). Before the adoption of the law of execution of Article 46 of the Federal Constitution, the simple principle of territoriality obtained also with regard to the law to be applied in cases of inheritance. In practice the principle had been established that in default of special contractual limitations, each canton is authorized, by virtue of its sovereignty, with regard to things located in its territory, whether they figure as individual objects or as component parts of an inheritance, to apply its legislation and jurisdiction, and that, therefore, in so far as an inheritance is located in different cantons and a conflict really exists between the different cantonal laws, the courts of each canton are in Federal law competent to decide disputes arising in matters of inheritance, in so far as the inheritance is located in the territory of the canton in question. This principle, the court stated, follows from the fact that according to Article 3 of the Federal Constitution, the cantons, in so far as they are not restricted by Federal law, are sovereign in their territory and may, therefore, not be hindered in applying the principles of their legislation in the local law to be used, and the courts are competent in disputes concerning inheritance, so far as their territorial sovereignty extends and in so far as they do not thereby interfere with the sovereignty of another canton. But it must not be forgotten that, in case of conflict of several systems of cantonal law, the unity of the inheritance is sacrificed and important practical disadvantages arise. However, the Federal Court must, in so far as conflicts arising from the divergency of the cantonal systems of law are not positively decided by the Constitution and the legislation of the Confederation, simply follow the principle that in case of such a conflict each canton is authorized to apply the principles established by its legislation, as far as its territorial sovereignty extends, and it is not authorized, for the purpose of solving such intercantonal conflicts, to establish and apply independent positive rules, limiting the exercise of cantonal territorial sovereignty (R. O. 7, p. 468/9). THE NATURE OF AMERICAN TERRITORIAL EXPANSION BY PITMAN B. POTTER Assistant Professor of Political Science, University of Wisconsin America has been commonly portrayed by American statesmen and politicians, even in fervid Independence Day orations, as a nation whose policy is ever for peace, and as a nation harboring no imperialistic aims. A certain group of thinkers-or feelers have boasted of the extreme pacifism and righteousness of America in this way in order to intensify and reënforce and promote those policies for the future. These good people have hoped to see America lead the way to a repudiation of militaristic methods and the gospel of conquest. Such are the pacifists, the church people, the reformers. A second group of people have firmly believed that, in actual fact, the record compelled and imposed on them such an interpretation of American policy. They have felt that the causes were only in part the voluntary preferences of the American people, and they have seen the importance to be attached, in interpreting the American policy, to the geographical and economic conditions determining the character of American growth and policies. But to whatever cause it has been due, and largely because it can be traced back to a deeper and firmer foundation and source than mere popular preferences, these students of American foreign policy have subscribed, and still subscribe, to the belief that the American practice in the matter of territorial expansion has been characterized by a lack of imperialism, of militarism, and of a lust for conquest such as has been manifested by certain European Powers from time to time in the past. Their opinion is entitled to respect. It is, moreover, useful, even indispensable, to have an accurate idea of the quality of American foreign policy in the coming days in order not, certainly, to expect too much of America, and also, just as certainly, to be able to utilize all the potential energy for good in international politics which America may be able to provide. The transports and boastings, and what have amounted to the spiritual excesses of those who have painted America as a pacifist and a saint among nations, have produced in certain quarters a feeling of revolt and a reaction against the traditional view of the matter. In certain cases the result is a mild, amused, somewhat cynical, somewhat wise and sophisticated skepticism as to the peaceable and righteous character of the American mood. In other cases the result is a flat denial of the American tradition, a |