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tional domain.86 On the other hand, an offense perpetrated by a citizen of a demanding state in foreign territory not subject to its control, is not believed to have been committed within the jurisdiction of that state, even though it asserts the right to punish the offender for his misconduct as an act in defiance of its own commands.87
The term “territories" as descriptive of the place where a fugitive seeks asylum or is found, is regarded as referring to a place subject to the control of the state upon which requisition is made, such as its own domain, or foreign territory under its military occupation,88 or a foreign merchant vessel within its harbors,89 or its own public vessels. Difficulties that may arise respecting the surrender of the fugitive when England, to Mr. Marcy, Secy. of State, Aug. 3, 1855, 67 MS. Despatches from Great Britain, Moore, Dig., IV, 282.
In a case of concurrent jurisdiction, such as, for example, where an offense was committed on a merchant vessel of the demanding state on the high seas, resulting in the death of the victim after the vessel reached a port of the state on which requisition was made, the latter would doubtless be justified in asserting itself the right to prosecute the offender, and in declining to surrender him, if its authorities saw fit to take such a course. See Mr. Fish, Secy. of State, to Mr. Watson, Aug. 15, 1874, MS. Notes to Great Britain, XVI, 413, Moore, Dig., IV, 281. See also Sternaman v. Peck, 83 Fed. Rep. 690. Compare situation in case of Peter Lynch, Moore, Extradition, I, § 107.
86 See the decision of Lowell, J. in re Taylor, 118 Fed. Rep. 196, and the comment thereon in Moore, Dig., IV, 280.
87 See Williams, Atty-Gen., 14 Op. 281, re Case of Carl Vogt; Compare In re Stupp, 11 Blatch. 124.
"It has been announced by the Department of State that an offence committed in a country where extraterritorial jurisdiction is exercised by foreign Powers is not committed within the jurisdiction of such Powers in the sense of the extradition treaties, so as to give the government of the country of which the offender is a citizen or subject the right to demand his surrender from the territory of the United States," (Moore, Extrad. I, § 108) quoting Mr. Cadwalader, Acting Secy. of State, to Mr. Bingham, American Minister to Japan, Aug. 18, 1875, For. Rel. 1875, II, 821.
88 See report of Jan. 9, 1900, Magoon's Reports, 523, Moore, Dig., IV, 285; letter of the Secy. of War, Aug. 17, 1900, quoted in Mr. Hill, Acting Secy. of State, to Mr. Aspiroz, Mexican Ambassador, No. 101, Sept. 4, 1900, MS. Notes to Mexican Legation, X, 537, Moore, Dig., IV, 285.
It is not believed that the term "territories” has reference to a foreign country where rights of extraterritorial jurisdiction are exercised by the state on which requisition is made. See Mr. Hunter, Second Assist. Secy. of State, to Mr. G. F. Seward, Consul-General, Aug. 31, 1874, For. Rel. 1874, 338; Mr. Cadwalader, Assist. Secy. of State, to same, Oct. 23, 1874, id., 347; Moore, Extradition, I, § 109.
89 See In re Newman, 79 Fed. Rep. 622.
he is found on a public vessel,90 or concerning his arrest when he is on board a foreign merchant vessel in a port of the state upon which requisition is made,91 are unrelated to the question as to whether the case falls within the scope of the treaty. If it does, any problem relating to surrender is always capable of adjustment.
11. FUGITIVES FROM JUSTICE The treaties of the United States are deemed to apply "not only to persons seeking an asylum here professedly, but to such as may be found in the country.” 92 The reasons that may induce offenders to enter are unimportant.93 There is, however, a disposition on the part of the United States to make the requirement that the person found within its territories shall have entered therein after having been himself within the "jurisdiction” of the state demanding his surrender. Consequently,
90 See Mr. Blaine, Secy. of State, to Mr. Denby, Minister to China, No. 680, Dec. 7, 1891, For. Rel. 1892, 74, Moore, Dig., IV, 283.
91 See Mr. Lincoln, Minister to England, to Mr. Blaine, Secy. of State, No. 480, June 24, 1891, MS. Despatches from England, Moore, Dig., IV, 284.
DOMESTIC LEGISLATION FOR EXTRADITION TO FOREIGN TERRITORY UNDER MiliTARY OCCUPATION. The enactment by a state of a law such as the amendment by Congress of June 6, 1900 of 8 5270 R. S., providing for the arrest within its territory of persons found therein after having violated certain criminal laws within foreign territory occupied by or under the control of the state, and establishing appropriate procedure for the surrender of such persons to the military governor of such territory, is merely an assertion of a right of jurisdiction by the sovereign in actual control of the place of refuge, and that also where the crime was committed. It is not based upon treaty. Nor is it responsive to any international obligation. In so far as the law of nations is concerned such legislation is essentially domestic in character. See Neely v. Henkel, 180 U. S. 109, in which the Act of June 6, 1900, was applied to Cuba, while occupied by the United States. See also Mr. Hay to Mr. von Mumm, Oct. 25, 1899, For. Rel. 1899, 318,319, Moore, Dig., IV, 265–266.
The Panama Canal Act of August, 1912, extends the operation of the extradition treaties of the United States to the territory embraced within the Isthmian Canal Zone. (Session Laws, 62 Cong., 2 Sess., 1912, p. 569.)
92 The language in the text is that employed in the caption of the opinion by Cushing, Atty-Gen., 8 Op. 306, cited in Moore, Dig., IV, 286.
93 See J. B. Moore, as to the case of Salvadorean refugees, Am. L. Rev. XXIX, 1, 5, where the learned writer declares that “There is no requirement in the treaties that the individual whose surrender is demanded shall have 'fled' from justice, and nothing is more common than to deliver up under their stipulations persons who are not fugitives in fact." See also In re Ezeta, 62 Fed. Rep. 972, 978.
a person who while in the United States and without leaving its domain, participated in a conspiracy to commit murder in a foreign state, within whose territory the conspiracy was carried into effect, would not be regarded as liable to extradition upon the demand of that state. 94
CHARLES CHENEY HYDE. 94 See Mr. Hay, Secy. of State, to Baron Fava, Italian Ambassador, No. 654, March 8, 1901, MS. Notes to Italian Legation, IX, 508, Moore, Dig., IV, 286.
THE PAN AMERICAN ORIGIN OF THE MONROE DOCTRINE
So much has been written regarding the origin of the Monroe Doctrine and on the supposed effects of the various causes contributing to its origin, toward its application at various times to different situations, that the only excuse that can be offered for discussing this phase of it must be to cover it from some fresh point of view.
The distinguished Peruvian diplomatist and author, Dr. Anibal Maurtua, on page 20 of his book La Idea Panamericana y la cuestión de Arbitraje, published in Lima in 1901, refers to President Monroe's message of December 2, 1823, announcing the Monroe Doctrine, as a “PanAmerican Declaration.” The great Argentine international jurist, Carlos Calvo, called it “declaratory of complete American independence," and the Peruvian author, Carlos Arenas y Loayza, states in his excellent monograph on the Monroe Doctrine, published in Lima in 1905, that “the Monroe Doctrine is linked with our past and with our present, and gives us the key of the future of these Republics, considered in relation to the events of our times and the indications of the future; which republics, extending over the same continent, form one sole body, are called on to have one and the same spirit and to work in accord, in edifying friendship for justice and peace on earth.”
Whence comes this Pan American nature of the Monroe Doctrine? It comes from its Pan American origin.
In the instructions of Secretary Monroe to Alexander Scott, agent of the United States of America to Venezuela, dated May 14, 1812, we find the following statement:
The United States are disposed to render to the Government of Venezuela, in its relations with foreign Powers, all the good offices that they may be able. Instructions have been already given to their Ministers at Paris, St. Petersburg, and London, to make known to those Courts that the United States take an interest in the independence of the Spanish Provinces.
The next link in the chain occurs in July, 1821, two years and six months before the famous Doctrine was actually issued, in a despatch from Mr. Thomas L. L. Brent, American chargé d'affaires at Madrid, to the Secretary of State, dated July 10, 1821:
As far as I have been able to form an opinion, it is, that the foreign Powers, during the agitation of the American question, have endeavored to prevent any arrangement between the parties.
On the 9th of July, Mr. Brent had an interview with Mr. Ravenga, one of the commissioners of Bolivar, at Mr. Ravenga's request.
He calculated, he said, upon the friendship of the United States to promote the independence of the Republic of Colombia; he had a full conviction that he could rely upon it. Mr. Monroe, when Secretary of State, had informed him that all the Ministers of the United States in Europe had instructions to advance the acknowledgment of their independence by foreign Powers.
I sympathized with him in the unpleasant situation in which he was placed, and feared that the sentiment in Spain was not as favorable as could be desired. He was perfectly justified, I said, in relying upon the good dispositions of the United States. It was their interest and their sincere wish that the acknowledgment of the independence of South America should be accelerated. The United States had not only been more forward than any other Power in publishing to the world their wishes with respect to her, but had accompanied them with actions, which certainly afforded the best proof of their sincerity; and among them, I adverted to the message of the President to the Congress of the United States at the commencement of its last session, in which, alluding to the proposed negotiation between the late colonies and Spain, the basis of which, if entered upon, would be the acknowledgment of their independence, he says—"To promote that result by friendly counsels, including Spain herself, has been the uniform policy of the Government of the United States.”
The friendship of the United States, he said, was very grateful to the Republic of Colombia, and he hoped and expected that, at the commencement of the next meeting of Congress, the acknowledgment of its independence would be decided upon; the moment had arrived when all the Powers of the world would see the propriety of it. He calculated that the United States would be the first to take this step; hoped to see a confederacy of republics through North and South America, united by the strongest ties of friendship and interest; and he trusted that I would use my exertions to promote the object he so much desired.
I heartily concurred with him in the hope that all governments would resolve to adopt a measure so conformable to justice; joined with him