Edward S. Stimson's
Conflict of Criminal Laws
Jon Roland

Edward S. Stimson's Conflict of Criminal Laws, although published in 1936, remains a classic of that branch of nomology sometimes called boundary analysis, the exploration of the underlying principles of law by examining legal problems, either actual or conjectural, that bring out the conflicts and defects in current jurisprudence. Although the treatise needs to be brought up to date with the cases decided since it was written, it appears no one has done that adequately, and it stands as an important contribution that should be read by any serious student of the law.

The first and most important thesis of this work is that the location of a criminal offense, and therefore the jurisdiction of a court constitutionally qualified to try it, is the location of the offender at the moment the offense was committed, not of the effects of the offense. In this era of unrestrained jurisdiction creep some might not appreciate why it is important whether a court has the constitutional authority to try an offender, but constitutional government is about limited delegated powers, and if the limits are exceeded, even with good intentions, none of our civil liberties are secure. The Founders recognized that rights could not be protected by mere declarations of those rights, and that only holding government within the narrow limits of its delegated powers could provide effective protection.

This is especially relevant to American constitutional law because the Constitution delegates only a few limited criminal powers to Congress on state territory, but broad powers on federal enclaves, such as the District of Columbia and facilities like military bases and some federal buildings, under Art. I Sec. 8 Cl. 17. If federal courts can prosecute persons for offenses because they have effects on federal enclaves, then they can leverage that into expanded powers, as they have been doing by asserting general police powers based on the Commerce Clause and the unconstitutional doctrine that the power to "regulate" interstate commerce implies the power to impose criminal penalties on anything that has a "substantial effect" on interstate commerce. It is also relevant to the unconstitutional assertion of extraterritorial criminal jurisdiction over offenses committed outside the territorial boundaries of the United States, either by U.S. citizens, or by foreign citizens injuring U.S. citizens or property anywhere in the world. Stimson challenges these tendencies as unconstitutional, and backs up this position with analysis and precedents going back to early English history.

Stimson also challenges other practices that are threatening to become established, but which are inconsistent with the Constitution. One of these is the expanded use of asset forfeiture. Another is the growth of punitive damage awards in civil cases based on the weaker civil rather than criminal due process protections.

However, Stimson's exposition is not always as clear or logically precise as it should be, reflecting some confusion, both on his part and on the part of jurists generally. Such an exposition remains to be written, but until that is done, a few highlights can be offered.

First, Stimson does not always clearly distinguish between conflicts arising out of the juridical practices and doctrines of the United States, subject to the U.S. Constitution, and those of other nations. Key provisions of the U.S. Constitution put severe constraints on the issues discussed:

Art. I Sec. 8 Cl. 10: "[The Congress shall have Power ...] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Laws of Nations;"

Art. I Sec. 9 Cl. 3: "No Bill of Attainder or ex post facto Law shall be passed."

Art. I Sec. 10 Cl. 1: "No State shall ... pass any Bill of Attainder, ex post facto Law, ..."

Art. III Sec. 2 Cl. 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said crime shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Art. IV Sec. 2 Cl. 2: "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime."

Fifth Amendment: "... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; ... nor be deprived of life, liberty, or property, without due process of law; ..."

Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, ..."

Second, for a constitutional republic of limited delegated powers, jurisdiction is not just "personal" or "subject". It is a way of characterizing the bounds on legitimate power, so a better organization of it might be:

Constitutional — The limits of the authority of the Constitution itself, its dominion, which are its territory, its citizens, and the subjects of its power delegations.
Subject (res or in subjectam materiam)
Territorial (in locum)
Personal (in personam)
Subject (res or in subjectam materiam)
Territorial (in locum)
Personal (in personam)
Subject (res or in subjectam materiam)
Territorial (in locum)
Personal (in personam)
Martial (Extraconstitutional) — Although U.S. officials are constrained by the Constitution, this pertains to actions beyond the constitutional dominion, such as making war or managing emergencies that may not permit constitutional compliance.

In addition, there must be the element of in warrantum, or the authority of the court to grant the relief sought, including the jurisdiction to decide its own jurisdiction.

The reason for putting territorial and personal under subject in the above breakout goes to the functions of those constraints on juridical jurisdiction. A criminal action begins with a charging phase, which commences with the filing of a criminal complaint, and perhaps an arrest, either custodial or noncustodial, followed by an arraignment, in which the court asserts personal jurisdiction over the accused, for the charging phase, during which territorial jurisdiction has not yet been determined, and subject jurisdiction not determined completely. It is under this jurisdiction that the accused by be held, released on bail or personal recognizance, required to remain in the area, and pursued and captured if he should flee. But it is not the jurisdiction that can allow the accused to be tried.

Establishing jurisdiction for hearing or trial is the next phase. Logically, this should be the function of the grand jury, which in its indictment should find not just that there is sufficient evidence for a trial, but more specifically, that the evidence is sufficient to establish both subject jurisdiction and also either territorial or personal jurisdiction. However, in practice the determination is usually made by the trial court itself, which may be considered to have a conflict of interest, either in favor or prosecution, or against it, depending on political factors. Appeals courts, if they have time to hear the case, may or may not correctly decide whether the trial court had jurisdiction.

It is important to realize, however, that jurisdiction for one phase is not the same as jurisdiction for another. The personal jurisdiction of the charging phase ends with the indictment or information, and is replaced with either territorial jurisdiction or a different personal jurisdiction, plus the subject jurisdiction, in the hearing or trial phase.

Properly understood, personal jurisdiction is an attribute of a person which follows him wherever he goes, and provides the authority to legislate for him, require him to comply with executive orders, or hear a case against him in a court of law. It must be distinguished from territorial jurisdiction, which is the physical territory within which persons of whatever personality or nationality are subject to legislation, executive action, and judicial action. Because a constitutional republic involves only limited delegated powers, those powers are defined by subject constraints, which define what kinds of actions or circumstances they apply to.

As originally understood, the U.S. Constitution does not delegate the authority to assert personal jurisdiction over U.S. citizens beyond the territorial limits of the U.S. or the high seas, except for military and diplomatic personnel. It also provides for denying personal and territorial jurisdiction over foreign diplomats in the U.S., which is the basis for "diplomatic immunity". Foreign diplomats are also entitled to special protections of law not accorded to non-diplomats, such as federal criminal prosecution of crimes against them, under the "laws of nations" clause.

This means, contrary to Stimson, that the assertion of personal jurisdiction over U.S. citizens abroad is not just bad policy, as it may be for other nations, but is unconstitutional.

Where an offense is "committed"

The established principles of criminal liability are that the prosecution must prove beyond a reasonable doubt all of the following five elements:

  1. Actus reus — The voluntary act of the accused, irreversible in its effects.
  2. Mens rea — Criminal intent, including reasonable presumption of knowledge of the law.
  3. Concurrence — The union of actus reus and mens rea as a single event.
  4. Causation — The act must have actual effect, or be capable of producing an effect.
  5. Harm — The effect must constitute actual harm, unmitigated by consent of the victim.

The U.S. Constitution in several of the above provisions uses the term "committed" rather than "occurred". That choice of words was deliberate, and not without force or effect. While a crime may be considered to have "occurred" within the territorial boundaries of any of the above elements, the term "committed" clearly means the first three elements only, and that they determine exclusive criminal jurisdiction.

Much of the conflict discussed by Stimson is over whether a crime is "committed" in the territory where the offender was or in the territories where the effects occurred. The offender might fire a shot from state or nation A, hit the victim in state or nation B, and the victim later dies in state or nation C. Who has territorial jurisdiction?

I have often posed the Four Corners Problem: Jones chases Smith around the point where the borders of Colorado, Utah, Arizona, and New Mexico meet. Finally, he fires a shot, which mortally wounds Smith. Numerous witnesses videotaped the events, so the exact locations of everything can be determined: At the moment the shot was fired, Jones had his feet on the soil of Colorado, but his head was over Utah, his hand holding the handgun was over Arizona, and Smith was in New Mexico when he was hit, but he was taken to a hospital in Oklahoma, where he died. Jones fled and was arrested in Texas. All five states (and perhaps the authorities of the Navajo and Paiute Reservations) apply to the Texas governor for extradition. Which state (or Reservation) has the valid claim? The Texas governor, advised by the Texas Attorney General, knowing his state will be sued by the other states, whichever he chooses, must choose only one.

I have also posed the Three Corners Problem: Juan, who may be a citizen of Mexico, Texas, or New Mexico, stands on the territory of Mexico (or New Mexico), extends his hand holding a gun and fires it over the territory of Texas (he would have to be on a boat, since the border is the Rio Grand River), and hits and kills Pepe, a citizen of New Mexico, Texas, or Mexico, standing on the territory of New Mexico (or Mexico). He later flees to and is arrested in Costa Rica. Considering all the permutations of location and citizenship, should he be extradited to Mexico, New Mexico, or Texas, or perhaps tried in Costa Rica?

Stimson correctly takes the position that the offense is committed where the offender was when he did it, but does not adequately explain why. The key is the term of art "committed". As originally understood, it was the conjunction of an irreversible act and criminal intent or negligence. The location is, therefore, the location of the offender. But our thought problems above indicate the location needs to be further refined. I take the position that the offense is ultimately a mental act, and therefore is committed where the offender's brain was at the moment the act became irreversible as far as the offender was concerned (leaving aside factors like medical care of the victim that might affect whether he lives or dies). In the Four Corners Problem above, that would be Utah.

The problem becomes more difficult, however, if the exact locations of the various elements of the offense cannot be determined with certainty. Then we are left with the problem of how to decide jurisdiction, and no common solution except for the first court to take custody to assert it. That is the way some of the conflicting precedents on this issue arose. This pre-emption doctrine has been established for cases of concurrent jurisdiction, but the "double jeopardy" clause essentially means there is not supposed to be any concurrent criminal jurisdiction under U.S. or state law. If the Founders had anticipated that an offense might be tried twice, once under a state law and again under a federal law, as in the Rodney King case, they would have clarified the language of the Fifth Amendment to exclude that. The obvious solution, at least within the U.S., would be to convene a special grand jury, probably composed of a majority not connected with any of the sovereigns in contention, to investigate and decide which has jurisdiction and who may prosecute the crime.

Nullum crimen sine lege

The ancient Roman legal maxim is that "there is no crime without a law". The questions are, what is a "law", and how specific does it have to be? The above passages from the U.S. Constitution use the word "passed" and seem to indicate only statutes are meant, but the prevailing definition at the time the U.S. Constitution was adopted was that law was any official act having the force of law, or the underlying principles of natural justice. Those principles were the subject of "common law" courts, that is, courts to hear cases involving such natural justice that is "common" to all citizens or persons, either within the national territorial domain, or beyond. Thus, the "law" included legitimate court decisions and executive orders, provided they were actually legitimate, which could be debated.

Originally, in English legal practice, there was not a clean distinction between civil and criminal offenses or trials of them. A complainant could petition a court for redress, to consist of any of several deprivations of the rights of the accused, including life, liberty, or property. Later, civil and criminal offenses and trials were separated, the former to decide private disputes over the distribution of rights and the exercise thereof, and the latter to decide complaints of public offenses, nominally against the crown or the people, although the victim might stand as an instance of that.

Many tend to think that civil proceedings exclude disablements of the rights to life and liberty, but competency hearings to commit a mentally disordered person to an asylum, or a hearing to decide to withdraw life support or authorize euthanasia, are called "civil" proceedings even though they might involve the disablements of life and liberty. Likewise, "punitive damages" are sought and granted in "civil" proceedings according to the rules of evidence and proof for such proceedings. Stimson rightly questions that practice. Criminal proceedings are properly defined as those in which a "punitive" disposition is sought, but one must question whether "punitive damages" in a civil proceeding, or a civil proceeding in which there is no stigma of criminality, the deprivation of life, limb, or liberty must be accorded the due process protections of a criminal proceeding, including the right to a unanimous verdict of an impartial jury of twelve upon proof beyond a reasonable doubt.

The United States inherited an English legal tradition which included prosecution for "common law crimes". This meant prosecution and punishment for crimes not defined by a statute, but by a tradition of findings of an unwritten "natural law" of which every person could be considered to have due notice. If there had been a statute describing this situation, it might have just said, "Felonies are punishable by death, and misdemeanors are punishable by fines, forfeiture, imprisonment, mutilation, or torture, but not death." Then prosecutors, judges, and juries were left to decide on a case by case basis whether the action of the accused was a "felony" or "misdemeanor" and what the penalty should be. It is no wonder Englishmen insisted on a jury system! This kind of vagueness was open to abuses of all kinds, not only by judges and prosecutors, but by juries themselves. The standard emerged that a prototypical "reasonable man" needed to be able to discern with some certainty what is and is not a crime, and what the penalty for it should be. The requirement for unanimous juries tended to narrow the range of specificity needed, but also multiplied the findings of "natural law", evidenced by judicial precedents, to a volume that was beyond what even legal experts, much less laypersons, could comprehend or know. The old maxim was "Ignorance of the law [that one can be reasonably expected to know] is no excuse." But volumes of precedents, not all of them even properly recorded, exceeded what anyone could reasonably be expected to know. Thus developed the practice of codifying case law, first by commentators, then into statutes, or "black letter law", which also enabled the punishment of actions not mala in se, but mala prohibita, based on the expectation that they were precursors to actions mala in se the suppression of which might prevent injuries as well as merely punish or redress them.

Common law crimes were declared unconstitutional in United States v. Hudson, 7 Cranch 32 (1812), but the opinion in that case, written by Justice Johnson, did not make it clear that the basis for the decision was that common law crimes are precluded by the constitutional prohibition against ex post facto laws. Since there is also a prohibition against state ex post facto laws, this would preclude common law crimes in the states as well, but some states still prosecute common law crimes. Stimson recognizes that common law crimes are "akin" to ex post facto laws, but they are much more than that. In a constitutional republic of limited delegated powers there can't be enforcement of unwritten "natural laws", because the power to make those cannot be delegated. The only law in a criminal common law case is the actual ruling of the court, which occurs after the offense with which the accused is charged, and therefore is ex post facto. The precedents from earlier cases are not law. Precedents are only suggestions, and perhaps evidence of law, but not law themselves.

Thus, we saw the attempts by the State of Michigan to prosecute Jack Kevorkian for assisted suicide as a common law crime. The juries didn't go along with that, correctly perceiving that such a prosecution was unconstitutional. Finally, Michigan adopted a statute against assisted suicide tailored just for Kevorkian, and it was under that statute he was finally convicted, for assisting a suicide after the statute was adopted.

But the problem of specificity and who decides it remains an open issue. It has always been the duty of executive branch officials to apply statutes to particular cases, but in recent decades we have seen the increased tendency for Congress to adopt unspecific statutes, and leave it to executive branch agencies to issue "regulations" to make the statutes more specific, supposedly within the bounds of the authority of the statutes. The proposed regulations are published in the Federal Register as a Notice of Proposed Rulemaking, with time allowed for public comment and congressional intervention to veto them, and then, if no intervention occurs, they become "regulations" enforceable as though they were statutes. That would seem a sensible thing to do, but too often this practice clearly crosses the line into delegation of legislative authority to an executive branch department, which is unconstitutional under Art. I Sec. 1: "All legislative Powers herein granted shall be vested in a Congress of the United States...." The appropriate specificity test is whether a "reasonable person" has to read the regulation to decide whether the statute applies to a situation, or can reach the decision by reading the statute itself. Executives can issue regulations that apply to their subordinates, contractors, and operations on property under their administrative control, but not over civilians or even operatives of other departments, unless a statute allows it. The entire income tax code has been erected this way, and reasonable persons can and do disagree about how to apply it to actual situations, or even whether there is any authority to do so at all. To forfeit property and actually prosecute persons criminally under this kind of legal ambiguity is patently unconstitutional in the execution, even if the constitutional and statutory authority for the code were established.

No law without consent

In a nonconstitutional nation there may be no opportunity for persons to "consent" to "laws" that govern them. They may not even have "notice" of such "laws". Government and jurisprudence may consist of little more than acquiescence in established practices, perhaps arbitrary ones, and U.S. civil courts may have to recognize some of these foreign "laws" in some kinds of cases involving disputes among citizens, denizens, and interests of several countries. However, the United States was founded on a different principle. It might have begun with the slogan, "No taxation without representation!", but it was really a rejection of being governed by legislation, and therefore by executive of judicial action, without legislative representation. The basis for jurisdiction, whether legislative, executive, or judicial, was ultimately consent through representation. Now in the early Republic not all citizens or denizens had the privilege of voting, but the theory was that those who did not, such as children, women, employees, and slaves, were represented "virtually" by those who did, adult males who were economically independent. The doctrine of "virtual representation" fell into disfavor, however, when the English Parliament claimed the American colonists were "virtually represented" by members of Parliament elected by citizens of English boroughs across the Atlantic. Gradually, the privilege of voting was extended to all but minor citizens, still considered "virtually represented" by their parents or guardians, and thus as "consenting" to the legislative, and therefore the executive and judicial jurisdictions, of the union and state governments. A legal foreign visitor is considered a provisional member of the society, consenting to its laws upon legal entry into U.S. territory.

A question of jurisdiction arises, however, when someone commits an offense while outside the territorial limits of the United States, or the high seas, which has its impact on U.S. territory, or on U.S. citizens or property inside or outside U.S. territorial limits or the high seas. Did the U.S. have constitutional jurisdiction to try Manuel Noriega for conspiring to smuggle narcotics into the U.S., even though he did it in Panama? Did the U.S. have jurisdiction to try the persons accused of bombing the U.S. embassies in Kenya and Tanzania, even though they may never have set foot on the grounds of those embassies, which are considered U.S. territory? My position, and the logic of the analysis by Stimson, is that the U.S. did not have criminal jurisdiction in those cases. They could be considered acts of war, punishable by military action, under the authority of a congressional declaration of war or letters of marque and reprisal, but not as violations of U.S. criminal statutes, or in U.S. courts. However, if war is declared, the Geneva Conventions apply, constraining treatment of the enemy forces by the standards of "prisoners of war", so the only way reprisals or trial by military tribunals could be conducted without those constraints would be under the authority of letters of marque and reprisal, not just a congressional resolution of consent to the actions of the president.

The problem of extraterritorial criminal jurisdiction claims can be seen in several recent cases.

In one, the nation of Spain petitioned the courts of Britain for extradition of Augusto Pinochet, then in England for medical treatment, for "war crimes" against citizens of Chile, both Pinochet and the victims in Chile at the time. The British courts rejected the claim, not on the correct ground that Spain did not have jurisdiction over crimes in Chile, but on the ground that Pinochet was too ill to stand trial.

In the second, a U.S. national, Gary Lauck, who published pro-Nazi material on a web site on a server in the United States, was arrested in Denmark, extradited to Germany in 1995, and successfully prosecuted for what is a crime there, where he is still in prison. The U.S. had rejected extradition, since its extradition treaties, like most such treaties, provide that the custodial nation can reject extradition for charges that would not be a crime in the U.S., or which would be punished much more severely than they would be in the U.S. Under such an exception, Spain is refusing to extradite to the U.S. some persons accused of complicity in the World Trade Center attacks, unless on the condition they not be subject to the death penalty, which is forbidden under Spanish law.

Within the U.S. the governors of states do not have the option of refusing an extradition request from another state, as Governor Perry of Texas attempted in 2001 to refuse extradition to California of a woman for kidnapping who fled with her children to Texas to escape an ex-husband who had been convicted of a sex offense, but won custody of the children. The woman has since been convicted, even though her children remain in Texas, in the custody of relatives who were granted custody by a Texas court, which refused to return the children to their father in California.

The case of the pro-Nazi publisher is particularly troublesome, because very few countries consistently respect the rights recognized in the U.S. Bill of Rights, and if any of them can make it a crime to exercise such rights on U.S. territory, and either get the accused extradited from the U.S., or from some third country he might visit, then we have a fundamental constitutional conflict of laws problem. Extradition is sometimes a fairly summary proceeding, especially if the accused is a foreign national. There is a need for an international convention restricting national criminal jurisdictions to the national territories of those nations, or the high seas, and defining the conditions under which military tribunals, such as the Nuremberg Court, can lawfully be conducted on the territories of nations for offenses committed there.

Also see

  1. {short description of image} {short description of image} A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824).
  2. {short description of image} {short description of image} Rights of foreigners in the "war on terrorism", Jon Roland, November 26, 2001.
  3. {short description of image} {short description of image} Original Understanding of the Commerce Clause, Jon Roland, July 29, 2002

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