Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 7, 1874
No. 804.
Mr. Russell to Mr. Fish.
July 13, 1874. (Received August 4.)
Sir: I have the honor to transmit the reply of the late minister of foreign relations to a communication of the United States minister resident, protesting against a law of Venezuela punishing false claims on the treasury. The reply is marked 2, and is accompanied by a translation.
Perhaps it is proper for me to suggest that, as Mr. Pile’s letter was of September, 1873, and as the reply bears date of January 18, and as both governments have stated their views, no object can be attained by making any rejoinder to the reply of the Venezuelan minister.
I am, &c,
Caracas, September 3, 1873.
Sir: In addition to what I had the honor to say to your excellency a few days since, verbally and informally, in reference to the two laws Nos. 548 and 549, dated February 14, 1873, concerning foreigners, it is my duty, in obedience to instructions received from my Government, formally to state that the penalties provided in the eighth article of law No. 549 are of so extraordinary a character, and so unprecedented in criminal legislation, that the Government of the United States of America cannot consent to their enforcement in the case of citizens of that country.
I offer your excellency the assurances of my high consideration.
His Excellency Jacinto Gutiérrez,
Minister of Foreign Relations of the United States of Venezuela.
The undersigned, minister of foreign relations, had the honor to receive the note of the 3d of September last, in which the honorable minister of the United States of North America declares that, in accordance with the instructions of his Government, he is obliged to declare formally that the penalties fixed by article 8 of the law of February 14 of that year, as to claims against the republic, are of a character so extraordinary and unprecedented in criminal legislation, that the Government of the United States of America cannot consent that they be applied to citizens of that country; and his excellency the President, having considered said note in cabinet meeting, has directed the undersigned to answer it as follows:
The law referred to says, in article 1: “Those who make claims against the nation, whether citizens or foreigners, on account of wrongs, injuries, or complaints for the acts [Page 1214] of national officers or those of the states, whether in war, civil or international, or in time of peace, shall follow the roles fixed by this act.”
Article 8 provides, that whoever appears in a manifest way to have exaggerated the amount of the wrongs that he has suffered, as he says, shall lose whatever right he could have had, and shall incur a fine of amount from five hundred to three thousand dollars, or shall suffer imprisonment from three to twelve months. “If it proves that the claim is false in every respect, the guilty party shall be subjected to a fine of from one to five thousand dollars, or to imprisonment from six to twenty-four months.”
Such is the order which has led to the note which the undersigned is about to answer; and, before coming to a conclusion, it is necessary to examine and decide carefully whether the republic had a perfect right to enact this law, and whether those who come within the limits of its territory, whoever they may be, are not absolutely obliged to submit to it.
There is no principle more firmly established in international law than that which recognizes as an essential attribute of the independence and the soverignty of nations the power of legislating on civil and criminal affairs.
All publicists unanimously agree that a sovereign and independent state wanting this power cannot be imagined; and although this doctrine may be sufficiently familiar to Mr. Minister Pile, the undersigned thinks it proper at this time to refer to some, among many, respectable authors to enforce the point.
“It is impossible to consider a state as sovereign and independent if it has not the necessary power to establish its legislation, civil and criminal. The states which lack this are deprived of one of the essential attributes of the sovereignty of nations, and should be regarded as dependent rather than as sovereign and free. Such a state could not exercise any jurisdiction, nor undertake the enterprises which it thought fit, nor make contracts; it would be, in one word, a state wholly dead and abject in the sight of the law of nations.
“The right of legislation and jurisdiction of states is complete within its own limits. Each one can and ought to regulate and determine all questions, civil and criminal; to fix the general conditions of the possession, transmission, and disposal alike of personal and of real estate; to determine the state and capacity of persons who are found therein, and the necessary requisites for the validity of contracts, and the rights and obligations that result from them; and lastly to fix the proceedings which must be followed, for the claiming of rights and determining the mode of administering justice.” (Calvo on International Rights.)
Joelix says: “Every foreigner can be judged in the country of his temporary residence for crimes and wrongs which he commits in that state. In criminal matters as in civil, the legislative and judicial power extends to the frontier of the territory, and cannot be exercised in foreign countries: but these two powers apply to all the persons who are in the territory, whether natives or strangers, equally to the acts of the one and of the other. In fact foreigners, like natives, are under the protection of the laws of the state, but equally under the obligation to observe them. The sovereign power of the state, therefore, includes, necessarily, the right to repress the violation of its laws, under the penalty of losing its sovereign existence. There is, therefore, no occasion to distinguish whether the author of the violation of the laws is a subject of the same state or a foreigner who remains in it for a time. So the fact is indifferent whether the crime or wrong has been done to the injury of a subject or a foreigner, and whether the victim is present or absent; the breach of local law exists in either case, and cannot be lost sight of because of the absence of the victim. These principles, laid down by authors who have written on the law of nations, and by those who have written on criminal law, have been sanctioned by the final decisions of nearly all modern legislation.”
Pradier Foderé lays down the same doctrine in the same words; and Twiss agrees that “the power of a nation within its own territory is by natural right exclusive and absolute; that it is not susceptible of any limitation, except such as the nation itself may fix, because any restriction imposed by an external authority upon its exercise would show a loss of independence by one nation in proportion to that restriction, and in equal proportion a gift of sovereignty to that power which had imposed such restriction. At least, any exception to the free exercise of the right of empire by a nation within its own territory should be derived from the consent of the nation itself. The right of legislation, civil and criminal, with respect to possessions or persons within the territory of a nation is a condition of the right of empire. Hence it follows that the laws of each nation affect by natural right all property within its territory, as well as all persons living in it, whether natives or foreigners.”
Phillimore says the right of jurisdiction, civil and criminal, over all persons and things within the territorial limits that belong to a state, with regard to its own subjects and their property, extends, as a general rule, to foreigners living in the country.
Besides, the law in question is penal in its nature, since its object is to repress and punish the abuses and frauds which have frequently been committed in Venezuela, by claiming and obtaining, by means of false proofs, payment for imaginary wrongs; and [Page 1215] in a penal matter the rule is still more strict, by which the foreigner is subjected to the jurisdiction of the country in which he commits the wrong.
“It is a general principle of law” says Story, “that crimes always have a local character, and are only to be tried and punished by the laws of the state in which they are committed.”
Phillimore speaks thus: “With respect to the administration of criminal law, it is necessary to remember that every person, on entering a foreign territory, binds himself by a tacit contract to obey the laws enacted in it for the maintenance of good order and for the tranquillity of the state; and it is plainly not only the right, but the duty, of a state to protect the order and security of the community intrusted to its charge, as well against the wrongs of strangers as of natives.”
“In the United States of North America and in the British dominions the rule has been most firmly maintained, which limits penal jurisdiction to the territory where the offense has been committed.”
Poitalis says: “Each state has the right of watching for its own preservation, and in this its sovereignty resides. How could a state preserve and maintain itself if it held in its bosom men who were allowed with impunity to violate its policy and to disturb its tranquillity? The sovereign power could not effect the final object for which it has been established if men, foreigners or natives, were independent of this power. It cannot be limited, either as to things or persons. It is nothing, unless it is all. The condition of a foreigner could not be an exception, so that he should prevail against the public power which rules in the country where he lives. To dwell in a country is to submit to its sovereignty.”
The law, as laid down, suffices to show that the law in question was passed by the republic with perfect right, in the exercise of its sovereignty, and the national executive could not change it in any way, nor neglect to enforce it under any pretext, nor allow it to be relaxed in compliment to any public officer.
The law is impartial in its first article as to foreigners and Venezuelans as to the proceedings which both classes must take in making claims which they have against the nation because of wrongs, injuries, or losses caused by public officers in time of war or in peace. If it fixed different rules for the two, setting up obstacles for foreigners which it did not establish for citizens, before they had opportunity to claim their rights before the proper authorities, there would be ground of complaint; but standing equal, as has been said, the pretense that North American citizens, who voluntarily and for their own convenience live in Venezuela, are in better condition than Venezuelans, and that they should not submit to the laws of the country, can only be regarded as offensive to the dignity of the republic and derogatory to the independence and sovereignty of the nation.
Even supposing that the penalties imposed by the law in question for those who undertake to defraud the public treasury by false claims are too severe, yet the claim of the North American Government is untenable, that its own citizens should not suffer, when the case arises, the same penalties which a Venezuelan would suffer in like circumstances; for, as Ortolan well says, “Chaque état a le droit de punir les délits commissur son territoire, sans distinction entre les délinquants nationaux ou étrangers. Et quelle loi y appliquera-t-il? Évidemment celle qui y est en vigueur, qui est la loi de cet etat. Objectionne-t-on que cette loi pent être mauvaise? C’est le sort possible de toute loi positive, mais alors elle est mauvaise contre les nationaux non inoins que contre les étrangers.”
No punishment is more severe and extrordinary than that of death, fortunately abolished by our law; and no doubt such punishment is condemned by modern civilization. Yet the nations which still preserve it in their codes, in the exercise of their sovereignty, do not hesitate to enforce it against foreigners who incur its penalty, notwithstanding the claims and arguments which are made against its fitness, justice, and utility. Nor does the undersigned agree with the Hon. Mr. Pile that there is no precedent for this law in criminal legislation, for that precedent is found in the very legislation of the United States of North America.*
On the 2d of March, 1883, the. United States enacted a law for the purpose of preventing and punishing frauds in promoting false claims in the same way, as the of use false documents, accounts, declarations, and proofs, in which it is provided that: “Any person in the land or naval forces of the United States * * * who shall, for the purpose of obtaining, or aiding in obtaining, the approval or payment of such claim, make, use, or cause to be made or used, any false bill, receipt, voucher, entry, roll, account, claim, statement, certificate, affidavit, or deposition, * * * may be arrested and held for trial by a court-martial, and if found guilty shall be punished by fine and imprisonment, or such other punishment as the court-martial may adjudge, save the punishment of death.” Section 3, chapter 67, of the law cited enacts that any person, not belonging to the Army or Navy of the United States, nor called out in the militia nor employed in the actual service of the United States, who shall do or commit any [Page 1216] of the acts forbidden in any of the provisions of said law, shall lose his right, and shall pay to the United States the sum of $2,000, and also double the amount of the loss which the United States has sustained by reason of the doing or commission of such act, together with the costs of process, and such damages and expenses may be recovered in the same judgment; and in addition to this the person who is brought before the proper court shall be punished by imprisonment not less than one nor more than five years, or with a fine of not less than $1, 000 nor more than $5, 000”
Like motives prompted both laws, and identical objects were proposed to each legislature, but that of the United States of North America was much more severe than the Venezuelan, imposing a much greater penalty in like cases. And your excellency will agree that neither the Government of Venezuela, nor any other, understood that their respective citizens were declared by the North American Government to be exempt from such penalties.
The undersigned, therefore, has the duty of stating, in the name of his government, to the honorable minister resident of the United States of North America, that, when the case arises, the law of February 14, 1873, as to claims against the nation will be applied to citizens and to foreigners living in Venezuela, without any exception.
The undersigned takes advantage of this occasion to renew to the honorable Mr. Pile the declaration of his high consideration.
- 2 Brightly, 212; 12 Stats., 698.↩