No. 493.
Mr. Romero to Mr. Bayard.
Washington, August 7, 1886. (Received August 9.)
My Dear Mr. Bayard: With the aim of preventing any misunderstanding between our two countries from rendering more difficult the speedy solution of the difficulties now pending, growing out of the imprisonment in El Paso del Norte, Mexico, of the United States citizen Augustus K. Cutting, to the prejudice of the good relations which both have cultivated and desire to cultivate, I take the liberty, in view of the importance and transcendency of this affair to proffer to you a few observations, which I hope may serve to set right facts which I fear have not been sufficiently understood here.
I deem it proper, first of all, to say to you that, not having been authorized by my Government to discuss this question with that of the United States, since its gravity naturally leads the Mexican Government to prefer to treat it directly, what I am about to state to you conveys my personal impressions, based on the knowledge I possess of this matter, of the intentions of the people and Government of Mexico to [Page 850] ward the United States and of the scope and tendencies of the legislation of my country.
Mr. A. K. Cutting has lived for eighteen months in Paso del Norte, Mexico, of which place he is, therefore, a resident [vecino]. He there takes part in the publication of a weekly periodical, printed in English and Spanish, called El Centinela [The Sentinel].
In the number of this periodical, dated June 6, of this year, he attacked a Mexican citizen, Emigdio Medina, who had announced the publication of a rival periodical in the same town of El Paso del Norte, Mexico.
Medina deemed himself slandered by that article, and before instituting a suit for defamation, in conformity with article 642 of the penal code of Mexico, which had been adopted by the state of Chihuahua, he sought, on the 14th of the same June, in conformity with an ancient Spanish law, likewise in force in Chihuahua, a “conciliation” before the second municipal judge in term of the criminal branch, Regino Castañeda, against Don Alexander N. Daguerre, the responsible agent of the periodical El Centineia. Mr. Daguerre stated that not he but Mr. Cutting was responsible for the article, for which reason the judge summoned Cutting, who put in an appearance and stated that he would publish in his periodical an apology in favor of Medina, and signed the respective “act of conciliation.”
Cutting was not condemned by the judge to retract what he had published against Medina, nor constrained in any way to withdraw his offensive words, as he asserts in an article which he afterwards published in El Paso, Tex.; but he signed his retraction spontaneously, and, perhaps, to avoid the consequences of a criminal suit instituted by Medina.
Cutting published his correction in El Centineia, in English only, and choosing the smallest type, so that it might be read with difficulty, and on the same day, June 20—or the 18th according to his affidavit—-he published in English and in Spanish, in a periodical of El Paso, Tex., entitled Sunday Herald, an article in which he reiterated the attacks made upon Medina in El Centineia.
Thereupon Cutting distributed in El Paso del Norte, Mexico, several copies of the Sunday Herald containing his article against Medina.
For this cause, the following day, June 21, he was summoned anew by Medina for defamation, in conformity with articles 642 and 186 of the Mexican penal code. The following day, the 22d, Cutting was arrested by order of the judge, but at his own request he was permitted to sleep in his own house that night. The 23d Cutting appeared before the court, but refused to answer the questions put to him, saying that this matter would be ventilated by the Government of the United States, and he was taken to prison under arrest, and on the morning of the 25th the judge issued his warrant of commitment, (auto de bien preso), in conformity with the prescription of article 19 of the Mexican constitution.
It appears to me that this is the exact and detailed narrative of the facts, which I have in part taken from reports received by me from El Paso del Norte, which, although of a private character, I deem trustworthy, and in part from other sources, also private.
I now proceed to examine the questions which these facts involve.
The Government of the United States believes that Cutting is under trial in El Paso del Norte solely because of an article published in El Paso, Tex., in compliance with article 186 of the Mexican penal code, and it considers that article incompatible with the principles of international law.
[Page 851]I think it proper to state, with reference to the first point, that, as I understand it, Cutting is on trial for the publication in El Centineia, a periodical published in El Paso del Norte, Mexico, of an article against Medina, which is deemed defamatory, and although there may have been adduced as an aggravating circumstance the publication of the other article in El Paso, Tex., I do not think that this is the principal crime of Cutting.
An attempt has been made to show that the “conciliation” signed between Medina and Cutting before the judge of El Paso del Norte, Mexico, on the 14th of June, put an end to the suit of Medina against Cutting because of the publication in El Centineia; but it is proper to bear in mind that the “conciliation” is not a trial, it involves no judicial sentence, nor does it put an end to anything, except in so far as the interested parties choose to submit themselves to its conditions.
The “conciliation” is an effort made by the law to avoid litigation, and its object is to bring to an agreement the parties interested in a future suit. If these agree, and each of them fulfills the terms of the agreement or “conciliation,” the suit is obviated. If they do not agree, the formal suit begins 5 and the same thing takes place if, having come to an agreement, they fail of what they had stipulated in the “conciliation.”
This latter is precisely the case between Cutting and Medina. They came to an agreement which rendered unnecessary the criminal action for defamation brought by the latter against the former 5 but this adjustment did not prevent one or both of the interested parties from failing to comply with its terms, and in this event the criminal action for defamation could be set in motion, which I believe is what took place.
When I gave you, in the interview we had at the Department of State on the 24th of July last past, a translation of article 186 of the Mexican penal code, my object was not to state that the judge of El Paso del Norte could (or might) proceed against Cutting exclusively in virtue of that article, but to bring to your attention that, contrary to the impression which seemed to prevail here, there was nothing arbitrary in the conduct of a Mexican judge who, under certain circumstances and under certain conditions, might institute trial for an offense committed in a foreign country, since, in conformity with the Mexican legislation, this case was provided for by the aforesaid article. As it contains a general provision, which is not restricted to the United States, but is equal with respect to offenses committed in every foreign country, it seemed to me that it might be taken as a proof that, in adopting that law, Mexico had sought to act in conformity with the precepts of international law.
I beg you to permit me to state that the penal code which the Mexican Congress approved on the 7th December, 1871, was drawn up by a commission of distinguished Mexican lawyers, who threw on the subject the light of a special study of the penal legislation of the most civilized countries, and who adopted from the European codes all that appeared to them most advanced and adaptable to the circumstances of Mexico. The one hundred and eighty-sixth article contains provisions which, with more or less limitation, are adopted in the penal codes of Belgium and Italy, as appears by the fourth article, chapter 1, book 1, of the penal code of Belgium, 5th edition, published at Brussels; and by articles 6, 7, 8, and 9 of the Italian penal code of November 20, 1859, edition of Milan, 1880, and which were adopted in that of France until [Page 852] recently, when they were restricted, as appears from the notes upon the French legislation, which you were pleased to show me in our interview of yesterday, although the principle still subsists that a country may, in certain cases, adjudge crimes committed abroad.
At first sight the provision of the Mexican penal code appears to be a counter principle (un contra principio), but when it is considered that the tendency of modern civilization is not to leave crimes unpunished, and that the first step which has been taken in this direction is in consenting to the extradition of criminals, which practice is now universal among civilized nations, it does not seem strange that the second step should be to give competence to the national courts to take cognizance of crimes committed in foreign parts, with certain restrictions and qualifications, such as are comprised in the five paragraphs of article 180 of the Mexican penal code.
Before passing to another matter, I deem it proper to state to you that the translation of the article in question, which I handed to you in our interview of 24th July, is not entirely correct, since the phrase “ar-resto-mayor,” which is found in the fifth paragraph of the aforesaid article, does not admit of ready translation into English; for which reason I inclose herewith a new translation of the same, and furthermore of article 124, which defines arresto mayor.”
The system of punishing crimes committed in foreign parts, especially when these, although perpetrated abroad, have their complement or realization or produce their effects in the country which punishes them, is in practical application in several countries, not merely in the provisions of their penal codes, but in the trials daily conducted and in the doctrines of various modern criminal authorities.
It is true that under the laws (common law) of the United States and England there is no jurisdiction to take cognizance of crimes committed in a foreign land5 yet in spite of this, there has just occurred a trial for libel in London, on suit instituted by Mr. Cyrus Field against Mr. James Gordon Bennett, editor of the Herald of New York, by reason of articles published in New York in Mr. Bennett’s paper, which Mr. Field regarded as defamatory of himself, and in which Mr. Bennett was condemned by the English courts to pay $25,000 for the damages and injuries occasioned to Mr. Field by the aforesaid articles, notwithstanding that they had been published in New York and not in London. It should, moreover, be borne in mind that Mr. Bennett is not a resident of London, as Mr. Cutting is of Paso del Norte.
It is true that the basis of the judgment of the English courts appears to be that, although the offense was committed in New York, its effects were produced in London, where the New York Herald circulates; but precisely the same reason exists in the case of Cutting, in the supposition that although the article was published in El Paso, Tex., it circulated in Paso de Norte, Mexico, where Medina was known and where it may be said that it produced its effect.
Several writers on the American and English penal code maintain doctrines similar to those put forth in article 186 of the Mexican penal code.
Joel Prentiss Bishop, in his commentaries on the Criminal Law, 7th edition, 1882, “Vol. II, Chapter VI, section 110, page 59 (Boston: Little, Brown & Co.), says as follows:
One who is personally out of the country may put in motion a force which takes effect in it, and in such a case he is answerable where the evil is done though his presence is elsewhere. Thus, murder, libel, false pretenses, etc.* * * If a man standing [Page 853] beyond the outer line of our territory, by discharging a ball, kills another within it, or himself being abroad circulates through an agent libels here, * * * or does any other crime in our own locality against our laws, he is punishable, though absent, the same as if he were present.
In support of this doctrine Bishop cites various American and English authorities, who sustain the principles enunciated by him.
This same doctrine is maintained by Bishop in his work entitled “Criminal Procedure, or Commentaries on the Law of Pleading and Evidence and Practice in Criminal Cases” (third edition, 1880, Vol. I, Book II, Chapter IY, section 53, page 27. Boston: Little, Brown & Co.), wherein he says as follows:
Personal presence.—The law deems that a crime is committed in the place where the criminal act takes effect. Hence, in many circumstances, one becomes liable to punishment in a particular jurisdiction while his personal presence is elsewhere. Even in this way he may commit an offense against a state or country upon whose soil he never set his foot, as explained in criminal law.
Bishop then goes on to mention defamation (libel) among the crimes which are punished in the place where they produce their effects, even though the party responsible does not reside there, and he cites various authorities to support his theory.
Before passing to another matter, I beg you to allow me to state that in the diplomatic correspondence annexed to the message of the President of the United States, of December 6, 1880, pages 707 to 719, it appears that since 1879 the Government of the United States has had knowledge of the provision of the Mexican penal code contained in the 186th article thereof; for, General Ord having complained to Señor Zamacona that a Mexican soldier named Zeferino Avalos had committed a murder in Texas and taken refuge in Mexico, he was tried for that crime committed in a foreign country, condemned to the capital penalty, and executed. Mr. Foster then went so far as to express satisfaction at the efficiency of the Mexican law, and the Government of Mexico took pleasure in being able to show that it prosecuted criminals. It is true that that law was then applied to a Mexican, and that the case changes its aspect when it is made effective in respect of a foreigner. But I mention this incident because it shows that the law has been applied for some time past with the knowledge and, it may be said, even to the satisfaction of the Government of the United States, or at least of its representative in Mexico.
Señor Mariscal, secretary of foreign relations of the United Mexican States, stated to Mr. Jackson, in the communication which he addressed to him on the 21st of July last past, that the political institutions of Mexico, like these of the United States, from which they have really been taken, did not permit the executive power of the federation to interfere with the administration of justice of the states, and that, for this reason, he could not give orders to the judge of Paso del Norte to set Cutting at liberty. The force of this consideration appears the more clearly when we take into account the case of Alexander McLeod, of which you had the goodness to speak to me in our interview of yesterday.
I have examined this case with attention, and find that McLeod, a British subject domiciled in Canada, was arrested in the State of New York, in the year 1841, because it was said that he had taken part in the capture of the steamer Caroline, which took place on the American side of the Niagara River in 1837, and was put on trial for murder. The British minister in Washington, Mr. Fox, demanded the immediate [Page 854] release of McLeod, on the ground that the capture of the Caroline had been the public act of persons in the service of the British Government, who had obeyed the orders of their superior officers, and that, according to the principles of international law, McLeod could not be held on account of acts committed in compliance with those orders. The Secretary of State, Mr. Webster, in his reply to Mr. Fox, recognized the force of the observations of the British minister so far as international law was concerned, and in a communication he addressed to Mr. Crittenden, Attorney-General of the United States, on March 15, 1841, he said that if the case were pending in any of the Federal courts of the United States the President would immediately order recourse to a nolle prosequi, thus satisfying the demand of the British minister; but he added that the President had no power to interfere in the proceedings of the civil or criminal courts of the State of New York. This point was clearly established by Mr. Webster in his note to the British minister of April 24, 1841, in which he used the following language: “In the United States, as in England, persons arrested in virtue of judicial proceedings can only be set at liberty by judicial proceedings, In neither of the two countries* * * can the arm of the executive power intervene directly or by force to set the arrested person at liberty. His liberty must be sought in a way in conformity with the principles of the law and the procedure of the courts.
It appears, moreover, that, notwithstanding the admission of the Federal Government that McLeod had been arrested in contravention of the principles of international law, and the interposition of the resort of habeas corpus by the counsel of the United States before the supreme court of the State of New York, this court refused the release of McLeod, and went on with his trial in virtue of the charge of murder.
In the case of Cutting, an offense was committed which is punished with equal severity by the laws of both countries, seeing that the law of Texas imposes a fine not exceeding $2,000 and imprisonment for not more than two years, and the Mexican law with a fine of from $200 to $2,000 and imprisonment (arresto*) from six months to two years (article 646 of the Mexican penal code).
If Cutting has been arrested by the authorities of the State of Chirhuahua on account of an act recognized as a criminal offense by the laws of both countries, that is to say, the Mexican laws and those of the United States, and if the arrested person may be tried in conformity with international law, the case of McLeod presents an important precedent, which justifies the course of the Federal Government of Mexico in not interfering with the proceedings of the courts of Chirhuahua.
It is true that in consequence of the McLeod incident the Congress of the United States passed the act of 29th August, 1842, under which the Federal judges are authorized to take cognizance of cases similar to that of Cutting and even to procure the immediate release of a foreign citizen or subject who is under trial by local courts; but, besides the fact that no such statute exists in Mexico as that of 29th An-gust, 1842, even did it exist, I do not think it would be applicable to the case of Cutting, for two reasons—first, because the statute in question requires that the arrested alien shall be domiciled in a foreign country, while Cutting was domiciled in Mexico; and secondly, because the exception which is alleged must depend upon the law of nations, and the ease of Cutting appear to come within this exception.
[Page 855]The interest with which the Government of Mexico has regarded this case has been evident from the moment that the Government of the United States called its attention thereto, through the medium of Mr. Jackson, its minister in Mexico; that is to say, since the 6th of July aforesaid.
As soon as the President of the Mexican United States had notice of this incident, by means of the note which Mr. Jackson addressed to Señor Mariscal on that date, he addressed the governor of the State of Chihuahua, recommending him to administer speedy and full justice in the case of Cutting, and that there should be amelioration of his situation, which, according to the statements made by Cutting and by Mr. Brigham, the consul of the United States at Paso del Norte, was very hard.
When Mr. Jackson again addressed Señor Mariscal in the matter, in his note of the 21st of the same July, these recommendations were repeated, and, as the result thereof, the governor of the State of Chihuahua sent, first, his secretary of government, Señor Don Manuel E. Bin-eon, from the city of Chihuahua to Paso del Norte to inform himself of the condition of the jail in the latter town, and to do everything possible in favor of Cutting, and he subsequently communicated the recommendation of the President to the supreme tribunal of the State, which called for a report from the judge who had cognizance of the case, and, not satisfied with this, commissioned its presiding magistrate to go in person to Paso del Norte for the purpose of seeing that the conclusion of the trial should be hastened, as far as might be possible, and to satisfy himself that the proceedings were in conformity with the law.
Although the affidavits of Cutting before the consul of the United States at Paso del Norte, and the reports of the latter, appear to paint in the most terrible colors Cutting’s condition in prison, I deem it proper to inform you that, instead of being confined in a filthy and loathsome dungeon, as Cutting represents, he has had the whole prison for his jail, with liberty to be, during the day-time, in any part thereof he wished and at night he slept in the warden’s room, which is the best in the prison.
When Señor Don Francisco N. Ramos, chief-justice of the supreme tribunal of Chihuahua, reached Paso del Norte, and saw that in reality the room referred to had little ventilation, he ordered a window to be opened in order to ameliorate the condition of the prisoner.
It would be desirable if all the Mexican towns had commodious prisons like those which exist in many of the cities and towns of the United States; but, unfortunately, the financial condition of that country has not permitted the construction of prisons combining the advantageous conditions of some of those in the United States; and if that of Paso del Norte is among the more disagreeable ones, this circumstance can not be regarded as in any way intended to unduly inconvenience those citizens of the United States who are obliged to be confined therein another proof of the zeal of the Mexican authorities in ameliorating Cutting’s condition, I will mention the fact that, according to the rules of the prison at Paso del Norte, only 10 cents a day are allowed to the prisoners for their subsistence, and that, for the benefit of Cutting, the chief-justice of the supreme tribunal of the state ordered that he should be allowed 50 cents, which sum, as I am informed, is the price of two meals in the hotels of that place.
It has been said that the judge of Paso del Norte attempted to try Cutting by applying to him the laws of Texas, and I deem it proper to correct this assertion by stating that if the laws of Texas have been spoken of in the court of Paso del Norte, it has probably been because, [Page 856] according to the fourth paragraph of article 186 of the Mexican penal code, it is necessary, in order that a crime committed in a foreign country shall be punishable in Mexico, that it shall be characterized as a crime in the country in which it was committed, and in Mexico, For this reason, probably, it may have been necessary to have recourse to the laws of Texas, in order to examine whether the {offense misdemeanor} falta of Cutting had the character of a crime (delito) in that State.
I deem it proper to state to you, before concluding this letter, that if the case of Cutting in El Paso del Norte has suffered any delay it is prbably due in great part to the course followed by him in Ignoring the authority of the judge who had cognizance of his case.
I entertain the hope, which I have imparted to you in the several conferences we have had touching this matter, that it will come to an end before long in a manner decorous for both countries and equally satisfactory to each of them, and that, far from interrupting the good relations which unite them, it will enable them to understand each other better, and help to avoid hidden dangers (escollos, literally “sunken rocks”) in the future.
I am, etc.
- Arresto signifies the imprisonment due to a misdemeanor, not imprisonment with labor, which is due to a felony.↩