Early in his Administration, Gov. McClellan faced a well-intentioned but ill-conceived law and order bill from the New Jersey Assembly. His veto is explained with a depth of Constitutional reasoning not seen by readers of his published wartime papers. This veto earned him considerable enmity in his Party's organization.
The following letter has not previously been published. It is not in McClellan's handwriting, but that of a secretary, and the errors and idiosyncracies of syntax and spelling have not been corrected. There are more letters from this period waiting to be transcribed from NJ State records. (Click here for more on that.)
To the House of Assembly:
I return herewith Assembly Bill No. 280, Supplement to an act entitled "An Act for the punishment of crimes" (revision) which provides "That any person who shall feloniously steal the property of another in any other state or country and shall bring the same into this state may be convicted and punished in the same manner as if such larceny or stealing had been committed in this state -- and in every such case such larceny or stealing may be charged to have been committed in any town or city into or through which such stolen property shall have been brought." Article 3 Section 2 paragraph 3 of the Constitution of the United States provided that the trial of all crimes except in cases of impeachment shall be by jury and such tirals shall be held in the state where the said crimes shall have been committed, and when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
It is undoubtedly within the power of the Legislature to declare that a person feloniously stealing property in another State or county and bringing it within this State shall be guilty of a misdemeanor or crime and affix a penalty thereto. But this act says that they shall be prosecuted in the same manner as if such larceny had been committed in this State.
And such larceny or stealing may be charged to have been committed in any town or city into or through which such stolen property may have been brought.
By this act the criminal may be charged with larceny committed in another state or county and the indictment must under the act untruthfully charge it to have been committed in the body of the county where the grand inquest is held. It is a principle of the common law much older than the Constitution that penal laws have no extraterritorial effect. It is [a] necessary principle of the law of nations to avoid a conflict of Jurisdiction.
In the State vs Carter - 3 Dist. 499 - it was held that a statute providing that when a person was feloniously stricken at any place out of the Jurisdiction of the State and shall die of the stroke within the Jurisdiction of the state cannot embrace cases where the act complained of had been wholly done within the territorial limits of another government. So when the indictment charging felonious assault and battery in New York and that the party injured came into and died from its effects in New Jersey, the court said it charged the crime against the laws of this State, that any statute to punish such an act would manifestly be void. Judge Vredenburgh said the act was done in the State of New York a regularly organized and acknowledged supreme government. The act was a crime against their sovereignty that was supreme within its territorial limits and in its very nature and in fact is exclusive. There cannot be two sovereignties over the same place at the same time and over the same subject matter. The existence of theirs is exclusive of ours. We may exercise acts of sovereignty over the waters of the ocean or land, but we must necessarily stop at the boundary of another. The allegations of an act done in another sovereignty to be a violation of our own is simply alleging an impossibility, and all laws to punish such acts are necessarily void.
If it be insisted that the fact that the offence is permitted by the Bill to be charged as being committed in New Jersey, still the proof in such case would not correspond with the charge and the defendant would only be convicted by a construction of the statute that made it unconstitutional.
The Constitution of the United State Amendment Art. 6 provides In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State and the district where the crime shall have been committed: which 'district' shall have been previously ascertained by law, to be informed of the nature and the cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of council [sic] for his defence. It seems to be clear in that by this bill the accused would be deprived of nearly all the defences of the Constitution has provided to prevent the conviction of the innocent.
The accused would be deprived of a trial by the Jury of the State where the offence was committed, he could not have compulsory process for his witnesses, he is untruthfully informed of the cause of the accusation against him. In the case of the State vs. La Blanche [2 US 8?], the Chief Justice says, "It is universally conceded that criminal laws are in their nature local and in their operations confined within the limit of the State in which they are enacted, but when larceny is inferred from the posession of stolen property in a jurisdiction other than that in which the original felonious taking occurred, it is impossible to overlook the fact that it is the sovereign and not the domestic law which is enforced. For these reasons I respectfully return the Bill without my approval.
George B. McClellan