USA v Kearny

• Jurisdiction: China
• Date: 08 October 1923
• Court: Obsolete Court (China)
• Docket Number: 184

United States, Court for China.

(Lobingier, J.)

Case No. 184

United States

and

Kearny.

The Individual in International Law — Individuals — Position of — Creation of Criminal Offence by Treaty.

Treaties — Operation and Enforcement — Criminal Law — Creation of Offence and Imposition of Penalty by Treaty.

The Facts.—This was a prosecution of a United States citizen, under the United States Criminal Code, § 37 (35 U.S. Stat. L. 1096), for conspiracy to commit an offence against the United States, the offence being the violation of certain treaties between China and the United States forbidding the trade in arms and munitions except at the requisition of the Chinese Government or for sale to Chinese duly authorised to purchase. The United States Court for China had jurisdiction over the defendant and over the crime if a crime had been committed.

The defendant demurred to the information on the ground that the treaties were no longer in force and that, even if they were in force, the provisions relating to arms and munitions had not the force of a law defining crime and providing for its punishment.

Held: That the demurrer must be overruled. Both the earlier and later treaties forbade the arms traffic. These treaty provisions had not been modified by the later treaties nor by statute. The treaties were self-executing. “They prohibit contraband trade in China on the part of American citizens, define its scope, and impose penalties for carrying it on.” (2 Extraterritorial Cases, 665, 669.) Even though they provided such...