No. 317.
Mr. Bayard to Mr. Jackson.

No. 221.]

Sir: After reading the telegrams and dispatches (copies of which I inclose for your information) of Mr. J. Harvey Brigham, United States consul at El Paso, Mexico, and also your No. 266, dated the 8th instant, relating to the case of Mr. A. K. Cutting, I telegraphed you on the 19th instant as follows:

You are instructed to demand of the Mexican Government the instant release of A. K. Cutting, a citizen of the United States, now unlawfully imprisoned at Paso del Norte.

By the documents before me the following facts appear:

On June 18 last A. K. Cutting, a citizen of the United States, who for the preceding eighteen months had been a resident, “off and on,” of Paso del Norte, Mexico, and as to whose character for respectability strong evidence has been adduced, published in a newspaper of El Paso, Tex., a card commenting on certain proceedings of Emigdio Medina, a citizen of Mexico, with whom Mr. Cutting has been in controversy. For this publication Mr. Cutting was imprisoned on the 22d of June last, at El Paso del Norte, in Mexico. Such a publication would not, even had it been made in Mexico, be the subject of criminal prosecution in that country, according to the Roman common law there in force, nor of any adverse governmental action, unless, perhaps, for the single purpose of requiring security in some small sum to keep the peace. But the paper [Page 701] was not published in Mexico, and the proposition that Mexico can take jurisdiction of its author on account of its publication in Texas is wholly inadmissible and is peremptorily denied by this Government. It is equivalent to asserting that Mexico can take jurisdiction over the authors of the various criticisms of Mexican business operations which appear in the newspapers of the United States. If Mr. Cutting can be tried and imprisoned in Mexico for publishing in the United States a criticism on a Mexican business transaction in which he was concerned, there is not an editor or publisher of a newspaper in the United States who could not, were he found in Mexico, be subjected to like indignities and injuries on the same ground. To an assumption of such jurisdiction by Mexico neither the Government of the United States nor the governments of our several States will submit. They will each meet out due justice to all offenses committed in their respective jurisdictions. They will not permit that this prerogative shall in any degree be usurped by Mexico, nor, aside from the fact of the exclusiveness of their jurisdiction over acts done within their own boundaries, will they permit a citizen of the United States to be called to account by Mexico for acts done by them within the boundaries of the United States. On this ground, therefore, you will demand Mr. Cutting’s release.

But there is another ground on which this demand may with equal positiveness be based. By the law of nations no punishment can be inflicted by a sovereign on citizens of other countries unless in conformity with those sanctions of justice which all civilized nations hold in common.

Among these sanctions are the right of having the facts on which the charge of guilt was made examined by an impartial court, the explanation to the accused of these facts, the opportunity granted to him of counsel, such delay as is necessary to prepare his case, permission in all cases not capital to go at large on bail till trial, the due production under oath of all evidence prejudicing the accused, giving him the right to cross-examination, the right to produce his own evidence in exculpation, release even from temporary imprisonment in all cases where the charge is simply one of threatened breach of the peace, and where due security to keep the peace is tendered. All these sanctions were violated in the present case. Mr. Cutting was summarily imprisoned by a tribunal whose partiality and incompetency were alike shown by its proceedings. He was refused counsel; he was refused an interpreter to explain to him the nature of the charges brought against him; if there was evidence against him it was not produced under oath, with an opportunity given him for cross-examination; bail was refused to him; and after a trial, if it can be called such, violating, in its way, the fundamental sanctions of civilized justice, he was cast into a “loathsome and filthy” cell, where, according to one of the affidavits attached to Mr. Brigham’s report, “there are from six to eight other prisoners, and when the door is locked there are no other means of ventilation”—an adobe house, almost air-tight, with a “dirt floor”; he was allowed about “8½ cents American money for his subsistence”; he was “not furnished with any bedding, not even a blanket.” In this wretched cell, subjected to pains and deprivations which no civilized Government should permit to be inflicted on those detained in its prisons, he still languishes, and this for an act committed in the United States, and in itself not subject to prosecution in any humane system of jurisprudence, and after a trial violating the chief sanctions of criminal procedure.

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These circumstances you will state as giving an additional basis, a basis which if it be established this Government will not permit to be questioned for the demand for Mr. Cutting’s immediate release.

I am, &c.,