No. 492.
Mr. Connery to Mr. Bayard.

No. 273.]

Sir: I have the honor to acknowledge receipt of your No. 200, dated the 1st instant, with inclosures, relative to the case of Mr. A. K. Cutting, and to say that immediately after studying it carefully in connection with the exhaustive report on “Extraterritorial Crime,” I addressed to Mr. Mariscal a long communication, in which I endeavored to set forth the arguments embodied in your instructions why the Mexican Government should pay an indemnity to Mr. Cutting, as well as modify their penal code in accordance with the rules of international law.

I beg to inclose herewith a copy of my note to Mr. Mariscal, from which you will see that I made copious extracts from your instructions, which accounts for its unusual length. I found it impossible to do otherwise without impairing the force of your arguments.

I trust that my communication will be found to cover all the essential points and arguments, and that it will meet with your approval. I any etc.,

Thomas B. Conner y.
[Inclosure in No. 273.]

Mr. Connery to Mr. Mariscal.

Sir: It will hardly surprise your excellency to learn that in this communication I propose, by direction of my Government, to reopen the discussion of the important questions arising from the arrest, imprisonment, and sentence of Mr. A. K. Cutting, an American citizen, for an alleged offense committed outside of Mexican jurisdiction. The release of Mr. Cutting by the higher court on a mere minor point settled only the [Page 845] question of his personal liberty. The vital issues remain; and now, when the excitement engendered by the first discussion of the case has disappeared, it is hoped that they may be considered with that judicial calmness and moderation which their importance demands.

The object of my Government in reopening the ease is twofold:

  • First. To say to your excellency that, in the opinion of my Government, an indemnity should be paid to Mr. Cutting for his arrest and detention in Mexico on the charge of publishing a libel in the United States against a Mexican; and
  • Second. To suggest to your excellency’s Government that the statute proposing to confer such extraterritorial jurisdiction should be repealed, in the interests of good neighborhood and future amity, and because it is invasive of the independent sovereignty of a neighboring and friendly state.

I have already placed in your excellency’s possession, by command of my Government, a copy of an able, indeed, I may say, an exhaustive report on “Extraterritorial Crime,” which was prepared by request of the Department of State with a special reference to the Cutting case. I ask your excellency’s most careful perusal of the same, and beg that it be considered a part of the papers in the case presented by my Government. After a calm examination of the report, I feel confident that your excellency will see cogent reasons for modifying the views enunciated by the Mexican Government at the first stage of the discussion of this important case, if indeed you do not cease to entertain a doubt of the uritenability of the position assumed by the Mexican Government that its own obligations under the law of nations may be nullified by its own municipal laws.

Before proceeding to state why, in the opinion of my Government, an indemnity should be asked from Mexico, let me set forth some reasons why your excellency’s Government should so change its laws as to enable it to comply with its international obligations. And, with this view, I am directed to say to your excellency that it would be highly honorable to the Mexican Government to follow in this regard the example of the Government of France, which in 1852 withdrew an objectionable measure similar to Article 186 of the Mexican penal code in the interests of maintaining friendly relations with Great Britain. On the 10th of June, 1852, the Corps Législatif of France adopted, by a vote of 191 to 5, a projet de loi conferring upon the courts of France jurisdiction over offenses committed by foreigners against Frenchmen outside of France. In consequence of representations made by the Government of Great Britain the measure was withdrawn. The Marquis of Normanby, formerly British ambassador at Paris, thereupon declared in the house of lords that during the whole period in which he had labored to maintain amicable relations between Great Britain and France he had seldom listened to any statement with greater pleasure than that of the manner in which the French Government had withdrawn this objectionable projet de loi. In his instructions to me, Mr. Bayard refers to the above case, and observes as follows:

“Sincerely desirous of maintaining with the Government of Mexico the most cord ial and friendly relations, I can not think that that end could be more signally promoted than by that Government following the highly honorable example of France in removing from the amicable relations of the two countries a law which stands as a constant menace to their continuance.”

In urging Mexico to adopt this course at this opportune moment, when the question can be considered dispassionately, my Government only suggests what it has put in practice itself under circumstances somewhat similar.

This is shown by the action of Congress in the McLeod case, which occurred in 1842, to which I beg leave to refer your excellency. In that case, when, in reply to the demand of the British Government for the release of the prisoner who was in the custody of the authorities of the State of New York, the United States Government was obliged to refuse on the ground that the Federal authorities had no right to interfere, Congress amended the law regulating the issuance of writs of habeas corpus, so as to enable the United States Government to fulfill its international obligations. In that case the reply of the United States Government to the demand for release was not dissimilar from that made by your excellency’s Government to the demand for the release of Cutting. But the United States made all haste to conform its municipal laws to its international obligations.

Allow me to close this part of my communication by another quotation from the instructions on this subject which I have received from the honorable Secretary of State. Mr. Bayard writes thus:

“The importance of the harmonious exercise of jurisdictional powers by the Governments of the United States and Mexico, and the desire of this Government to maintain the closest and most friendly relations between these two neighboring countries, were so impressively stated by the President in his last annual message to Congress that it is proper to quote from it the following pertinent passage:

“‘In the case of Mexico there are reasons especially strong for perfect harmony in the mutual exercise of jurisdiction. Nature has made us irrevocably neighbors, and wisdom and kind feeling should make us friends.

[Page 846]

“‘The overflow of capital and enterprise from the United States is a potent factor in assisting the development of the resources of Mexico and in building up the prosperity of both countries.

“‘To assist this good work all grounds for apprehension for the security of person and property should be removed; and I trust that in the interests of good neighborhood the statute referred to will be so modified as to eliminate the present possibilities of danger to the peace of the two countries.’”

To set forth clearly the reasons why an indemnity should be paid, it becomes necessary to recall the essential facts connected with the illegal arrest, detention, trial, and sentence of Gutting, familiar though they be to your excellency.

A. K. Cutting was arrested on June 23, 1886, at the request of Emigdio Medina, a citizen, of Paso del Norte, on account of the publication of an alleged libel in Texas. He was brought before the Mexican court, refused counsel and an interpreter when he asked for them, was not allowed to give bail though ready to do so, was thrown into prison, and subjected to great cruelty while so confined. All this because he committed auactin Texas objectionable to a Mexican citizen, and because a Mexican judge considered himself competent to so punish an American citizen under an article of the Mexican penal code, called Article 186, which translated is to the following effect:

“Penal offenses committed in a foreign country by a Mexican, against Mexicans or foreigners, or by a foreigner against Mexicans, may be punished in the Republic (Mexico) and according to its laws subject to the following conditions:

  • “I. That the accused be in the Republic, whether he has come voluntarily or has been brought by extradition proceedings.
  • “II. That if the offended party be a foreigner, he shall have made proper legal complaint.
  • “III. That the accused shall not have been definitively tried in the country where the offense was committed, or, if tried, that he shall not have been acquitted, included in an amnesty, or pardoned.
  • “IV. That the breach of law of which he is accused shall have the character of a penal offense, both in the country in which it was committed and in the Republic.
  • “V. That, by the laws of the Republic, the offense shall be subject to a severer penalty than arresto mayor” (detention for from one to eleven months).

My Government denied the right of your excellency’s Government to assume jurisdiction of the case merely by force of a municipal law violative of the well-recognized principles of international law. Mr. Bayard demanded the release of Cutting on the grounds:

  • First: That the judicial tribunals of Mexico were not competent under the rules of international law to try a citizen of the United States for an offense committed and consummated in his own country and merely because the person offended happened to be a Mexican; and,
  • Second: Because the sanctions of justice which all civilized nations hold in common had been violated by his treatment.

“Among these sanctions,” it was stated, “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 of 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 when due security to keep the peace is tendered.”

I am directed to say to your excellency that the importance of this second ground upon which Mr. Cutting’s release was demanded is not to be underestimated, although in the course of time it was overshadowed by the jurisdictional question raised by the claim of the Mexican Government of a right to try and to punish a citizen of the United States for an offense committed by him in his own country against a Mexican.

“Not only was this claim,” says Mr. Bayard, “which is defined in Article 186 of the Mexican penal code, defended and enforced by Judge Zubia, before whom the case of Mr. Cutting was tried, and whose decision was affirmed by the supreme court of Chihuahua, but the claim was defended and justified by the Mexican Government in Communications to this Department, emanating both from the Mexican minister at this capital and from the department of foreign affairs in the City of Mexico.

“The statement of the consul at Paso del Norte, that Mr. Cutting was arrested on the charge of the publication in Texas of an alleged libel against a Mexican, is fully sustained by the opinion of Judge Zubia. Under the head of ‘It appears’ in that decision it is stated that on the 22d of June, 1886, ‘the plaintiff enlarged the accusation, stating that although the newspaper, the El Paso Sunday Herald, is published in Texas, Mr. Cutting had had circulated a great number in this town and in the interior of the Republic, it having been read by more than three persons, for which reason an [Page 847] order had been issued to seize the copies which were still in the office of the said Cutting.’ The conclusive inference from this statement is that the charge upon which the warrant of arrest was previously issued was the publication of the alleged libel in Texas. It matters not whether such publication was originally treated by the court as a breach of a conciliation previously entered into between Cutting and Medina, the Mexican plaintiff, or whether it was treated as a distinct and original offense. In either case the assumption of the Mexican tribunal under the law of Mexico to punish a citizen of the United States for an offense wholly committed and consummated in his own country against its laws was an invasion of the independence of this Government. To say that a conciliation in Mexico which operates as a stay of criminal proceedings there, binds a citizen of the United States in his own country, is simply to assert that the Mexican penal law is binding upon citizens of the United States in their own country. It appears, however, under ‘Considering 6’ in Judge Zubia’s decision, that the claim made in Article 186 of the Mexican penal code was actually enforced in the case in question as a distinct and original ground of prosecution. The decision of Judge Zubia was framed in the alternative, and it was held that, oven supposing the defamation arose solely from the publication of the alleged libel In the El Paso (Texas) Sunday Herald, Article 186 of the Mexican penal code provided for punishment in that case, Judge Zubia saying that it did not belong to the judge to examine the principle laid down in that article, but to apply it fully, it being the law in force in the State of Chihuahua. It nowhere appears that the Texas publication was ever circulated in Mexico so as to constitute the crime of defamation under the Mexican law. As has been seen, this was not a part of the original charge on which the warrant for Mr. Cutting’s arrest was issued; and While it is stated in Judge Zubia’s decision that an order was issued for the seizure of copies of the Texas paper which might be found in the office of Mr. Cutting in Paso del Norte, it nowhere appears from that decision that any copies were actually found in that place or elsewhere in Mexico.

“But however this may be, this Government is still compelled to deny, what it denied on the 19th of July, 1886, and what the Mexican Government has since executively and judicially maintained, that a citizen of the United States can be held under the rules of international law to answer in Mexico for an offense committed in the United States, simply because the object of that offense happened to be a citizen of Mexico. The Government of Mexico has endeavored to sustain this pretension on two grounds; First, that such a claim is justified by the rules of international law and the positive legislation, of various countries; and, secondly, on the ground that such a claim being made in the legislation of Mexico the question is one solely for the decision of the Mexican tribunals. In respect of the latter ground it is only necessary to say, that if a government could set up its own municipal laws as the final test of its international rights and obligations then the rules of international law would be but the shadow of a name and would afford no protection either to states or individuals. It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfillment of international duties. Such regulations may either exceed or fall short of the requirements of international law, and in either case that law furnishes the test of the nation’s liability and not its own municipal rules. This proposition seems now to be so well understood and so generally accepted that it is not deemed necessary to make citations or to adduce precedents in its support.”

In proceeding to the consideration of the Mexican jurisdictional claim in connection with the principles of international law, Mr. Bayard bids me say that he has not contended, as seems to have been assumed, that if Mr. Cutting had actually circulated in Mexico a libel printed in Texas in such a manner as to constitute a publication of the libel in Mexico within the terms of the Mexican law, he could not have been tried and punished for the offense in Mexico.

As to the question of international law, Mr. Bayard is unable to discover any principle upon which the assumption of jurisdiction made in Article 186 of the Mexican penal code can be justified.

“There is ho principle better settled,” observes Mr. Bayard, “than that the penal laws of a country have no extraterritorial force. Each state may, it is true, provide for the punishment of its own citizens for acts committed by them outside of its territory but this makes the penal law a personal statute, and while it may give rise to inconvenience and injustice in many cases, it is a matter in which no other government has a right to interfere. To say, however, that the penal laws of a country can bind foreigners and regulate their conduct, either in their own Or any other foreign country, is to assert a jurisdiction over such countries and to impair their independence. Such is the consensus of the leading authorities on international law at the present day. There being, then, no principle of international law which justifies such a pretension, any assertion of it must rest as an exception to the rule either upon the general concurrence of nations or upon express conventions. Such a concurrence is [Page 848] respect to the claim made in Article 186 of the Mexican penal code can not he found in the legislation of the present day. Though formerly asserted by a number of minor states it has now been generally abandoned and may be regarded as almost obsolete.

“The only assertion I have found in the legislation of Europe of a general jurisdiction by one state of offenses committed abroad by foreigners against subjects is in the cases of Greece and Russia. The legislation of these countries gives to the judicial tribunals general jurisdiction over such offenses. In Sweden and Norway their punishment is discretionary and depends upon the King ordering the prosecution. In Austria felonies, but not misdemeanors (the charge against Mr. Cutting of libel is only a misdemeanor, not only under the Mexican law but under that of Texas), committed by foreigners abroad are punished, but only (except in crimes against the safety of the state and against the national seals and moneys, etc.) after an offer of surrender of the accused person has first been made to the state in which the crime has been committed and has been refused by it, The law is substantially the same in Hungary and in Italy; but criminal offenses committed outside the state by foreigners against the citizens or subjects are not punished under any circumstances or conditions by France, Germany, Belgium, Denmark, Great Britain, Luxembourg, The Netherlands, Portugal, Spain, and Switzerland.

“It is thus seen that Russia and Greece are the only European countries whose claim of extraterritorial jurisdiction is as extensive and absolute as that of Mexico j for it was held by Judge Zubia, whose decision was affirmed by the supreme court of Chihuahua, that it did not belong to the judicial tribunals of Mexico to examine the principle laid down in Article 186, but to apply it in all force, it being the law of the State of Chihuahua, and Mr. Mariscal disclaimed any power on the part of the Mexican Executive to interfere with the execution of the law by the judicial tribunals. Thus the Mexican claim is absolute, and exceeds that made by Sweden and Norway, where the prosecution can only take place if the King orders it.”

Neither do the laws of France sustain the principle set forth in Article 186. A careful examination of those laws shows that the French code authorizes the prosecution of foreigners for offenses outside of the territory of France, only in the exceptional cases of crimes against the safety of the state, and of counterfeiting the seal of the state as well as national moneys having circulation, national papers or bank bills authorized by law. The court of cassation of France decided, in 1873, in the case of Raymond Fornage, which your excellency will find set forth in the report on “Extraterritorial Crime,” that with the exception of the crimes already mentioned the French tribunals are without power to judge foreigners for acts committed by them in a foreign country; that their incompetence in this regard is absolute and permanent; that it can be waived neither by the silence nor consent of the accused; that the right to punish emanates from the right of sovereignty, which does not extend beyond the limits of the territory, and that the incompetence of the French tribunals, as above stated, exists always the same in every stage of the proceedings.

The same can be said as to the legislation of the Spanish American Republics. “It does not sustain $he idea of Article 186. Neither in the Argentine Republic nor in Chili, nor in Peru, nor in Colombia, nor in Costa Rica is there any law,” observes Mr. Bayard, “that authorizes the punishment of foreigners for offenses committed abroad against citizens of those countries.”

In conclusion, I wish to make another long quotation from Mr. Bayard’s comprehensive instruction to me on this important subject. After reviewing the legislation of other countries, the honorable Secretary says:

“It has constantly been laid down in the United States as a rule of action that citizens of the United States can not be held answerable in foreign countries for offenses which were wholly committed and consummated either in their country or in other countries not subject to the jurisdiction of the punishing state. When a citizen of the United States commits in his own country a violation of its laws, it is his right to be tried under and in accordance with those laws and in accordance with the fundamental guaranties of the Federal Constitution in respect to criminal trials in every part of the United States. To say that he may be tried in another country for his offense, simply because its object happened to be a citizen of that country, would be to assert that foreigners coming to the United States bring hither the penal laws of the country from which they come, and thus subject citizens of the United States in their own country to an indefinite criminal responsibilty. Such a pretension can never be admitted by this Government.

“It has been seen that Article 186 of the Mexican penal code requires that the offenses included in the article must be also punishable in the place of their commission; and the proceedings before Judge Zubia, as set forth in his decision, show that the Texas penal code was introduced in the trial to prove that Mr. Cutting had committed the offense of libel in Texas. With this code before him, Judge Zubia held that its provisions had been violated. Thus, sitting as a Mexican magistrate, be did what no Texas judge could have done had Mr. Cutting been on trial in that State for the alleged offense against its laws, By the Texas code (sec. 2291.) ‘it is no offense to [Page 849] publish true statements of facts as to the qualifications of any person for any occupation, profession, or trade.’ But this isnot all. By the fundamental law of the State no judge can convict any person of libel; for section 6, Article I of the constitution of Texas provides that in all indictments for libels the jury shall have the right to determine the law and the facts under the direction of the court, as in other cases.’

“These provisions render it wholly unwarrantable for any judge, domestic or foreign, alone to decide that a person has committed a libel under the law in Texas. Nor is it shown that Judge Zubia even attempted to inquire as to the truth of Mr. Cutting’s alleged libelous statements.”

I have made these copious quotations from Secretary Bayard’s instructions because it seems to me that his very able arguments are most convincing, and I could not well see a shorter method of placing the whole case forcibly before your excellency.

Before closing let me direct attention specially to pages 86, 87, and 88 of the report on “extraterritorial crime,” by which your excellency will see that the list of codes inclosed with the communication of the Mexican department of foreign affairs under date of August 13, 1886, can not be relied upon to sustain the claim set forth in Article 186 of the right of a nation to punish a foreigner for an offense committed against one of its citizens outside of its territory.

Also I would beg to direct attention to the remarks of the author of the same report respecting the opinions of publicists like Fiore, Phillimore, Wheaton, Bar, Hall Story, Field, Wharton, Sir G, C. Lewis, Heffter, M. Faustin Heliej Pradier Fodéré, and even President Woolsey, as well as others referred to on pages 92, 93, 94, 95, 96, 97, and 98 of the report on “extraterritorial crime.”

Finally I wish to notify your excellency that for all the above reasons my Government considers that the arrest, imprisonment, trial, and sentence of Cutting, as well as the denial to him of the sanctions of justice recognized by all civilized countries were violative of the rules of international law, binding upon Mexico in spite of any domestic enactments conflicting therewith, and that, therefore, Mexico should be ready and willing to make all the reparation in its power by offering to pay the injured party an indemnity commensurate with the wrong inflicted.

I beg to renew, etc.,

Thomas B. Connery.