No. 494.
Mr. Romero to Mr. Bayard.


Mr. Secretary: I have the honor to send to yon herewith copies of two notes I have received from Señor Mariscal, secretary of foreign relations of the United Mexican States, dated in the City of Mexico on the 12th and 13th instant, respectively, in which are set forth the ideas of the Mexican Government with respect to several points connected with the incidents which arose from the arrest in Paso del Norte, in the State of Chihuahua, of Mr. Augustus K. Cutting, a citizen of the United States of America, and his subsequent trial by the courts of that State. I likewise inclose to you a copy of the annex No. 1 to the second note of Señor Mariscal and a copy of No. 27, Year XIV, Vol. XXVII of the periodical of legislation and jurisprudence entitled El Foro, published in the City of Mexico on the 6th instant, which contains the article of Señor Don José M. Gamboa upon the same subject, cited in the second note of Señor Mariscal.

Be pleased, etc.,

M. Romero.
[Inclosure 1.]

Mr. Mariscal to Mr. Romero.

I have carefully made myself acquainted with your note No. 885, dated 24th ultimo, in which you report the conference which you held that day with Mr. Secretary Bayard concerning the case of A. K. Cutting. You therein observed that you only knew the case through the publications in the newspapers of the United States and certain telegrams of mine which gave no details. This “was so in fact, since there had not been time to furnish you with the correspondence exchanged with the American legation; neither was it possible to give you details of what had occurred before the judge of Paso del Norte, there being no complete information thereof in this department (which, moreover, was not charged with possessing them) until now that the sentence has been pronounced, which, together with the notes and farther data in the case, you will see published in the Diario Oficial of this date.

It has seemed expedient to make this publication in order to satisfy the natural anxiety of the Mexican people, especially as the correspondence in question has already appeared in the newspapers of the United States. By the text of the sentence, in particular, you will see that certain assertions of Mr. Bayard, due, doubtless, to reports at variance with the truth which he had received from biased persons, were not exact. Among these are, that the proceeding had been a public prosecution and not on the suit of a party, the fact being that it was instituted and carried on upon the formal complaint of the injured parts, and that he (Cutting) was not permitted to name advocate or counsel, when he named those whom he saw fit, and, when two of these had withdrawn from the case, he not wishing to name another, counsel was assigned to him. As to the complaints that he was badly treated in the prison, you will see by the published telegrams that the treatment he there received was as good as was possible, and much better than that given to the other prisoners.

With respect to the jurisdictional question, or touching the competence of the Mexican judge of Paso del Norte to try Cutting, who at least in his second act of defamation committed an offense in Texas, that is, in a foreign country, I deem it necessary to proffer some observations at length. Upon this point, as it appears, Consul Brigham, who resides in that city, rests, and there is no doubt that Mr. Secretary Bayard relies upon it for deeming the imprisonment of batting illegal. I will here remark that even though the consul should deem the court incompetent, even though it should [Page 858] appear perfectly clear to him, he should not have counseled the prisoner to refuse to testify and defend himself, as it is said he has done; for to do so was to counsel a failure of respect and resistance to justice, either had he reason to complain at once to his Government, giving rise to the excitement and alarm which such action has produced. His duty in such a case was to advise Cutting to deny the jurisdiction, and to furnish him with the means of proving the incompetence of the court, which was at least competent to take cognizance of such an allegation, since it is clear that every agency for the exercise of judicial authority is competent to decide touching its own jurisdiction when any one may deny it. A decision on the point of competence could have been appealed from, and only when after exhaustion of the legal means of redress there remained a decision contrary to the profound convictions of the consul, could that functionary have imagined that there existed a notorious denial of justice.

Returning to the question set forth concerning the jurisdiction of a country to take cognizance in certain cases determined by law of offenses committed in foreign parts, it would not be surprising if there were contradictions between the opinions of jurists and well informed persons in the United States and that which prevailed in drawing up the penal code of the Federal district, widen is also in force in Chihuahua. Our method of determining that question, which in the absence of precedents of positive law is simply one of private international law, is in conformity with the principles adopted by the majority and with the legislation in force in a great many civilized nations—in almost all those which have adopted the system of Roman jurisprudence in contradistinction to the so-called common law of England. This is recognized by an American authority, Wheaton, in these words: “By the common law of England, which has been adopted on this point by the United States, criminal offenses are considered local, and are justieiable” only by the courts of that country where the offense is committed. But this principle is peculiar to the jurisprudence of Great Britain and the United States, and even in these countries it has frequently been disregarded by the positive legislation of each.”

It is evident therefore, that the absolute principle that offenses can never be punished but in the country where they were committed, is not admitted by the generality of nations and belongs only to the jurisprudence of the Anglo-Saxon countries, where, notwithstanding its adoption, it is often disregarded in positive legislation. All this is likewise taught by an English writer, Philliinore, who, moreover, observes that the doctrine of the common law is open to very conspicuous inconveniences, especially in the case of frontier settlements (Phill. International Law, Vol. V, sec. 985). The inconvenience which thereby occurs in the neighborhood of a frontier consists in the ease of crossing it and injuring in another territory the nation which has been temporarily quitted, or the subjects thereof, and immediately returning thereto in defiance of the offended party and of the national justice. Such would be for us the result of declaring our courts incompetent to take cognizance of offenses committed in the neighboring nation against our country or its citizens.

The two writers above cited confirm the preponderance which exists in the opinions of public law in favor of extraterritorial jurisdiction for the punishment, in certain eases, of determinate crimes; and even though it be confined to offenses committed outside of the country by its own citizens, Phillimore notes that by the legislation of France (we shall see further on that it is also by that of several other countries) a foreigner is justiciable who is found in the nation alter having committed an offense without its limits against that nation or against one of its subjects. The punishment of the foreigner in such a case depends upon the principle which may have been adopted touching competence in general over certain offenses perpetrated abroad since it does not seem just to impose penalties therefor upon the citizens and leave the foreigner in like circumstances unpunished. Such is the opinion of Pana, the annotator of Wheaton, who thus expresses himself: “The question whether a state shall punish a foreigner found within its limits for a crime previously committed abroad against that state or its subjects, also depends upon its system respecting funishing generally for crimes committed abroad.” Great Britain and the United States, respecting strictly the principles of the territoriality of crime, leave them unpunished. France follows the analogy of its treatment of its own subjects under like circumstances.” (Dana’s Wheaton, 8th ed., note 77, par. 120.)

Having thus ourselves adopted the system of punishing our own citizens for the offenses they commit in foreign parts, even when committed against foreigners, it was natural that we should legislate for the punishment of the foreigner who in a foreign country shall offend our Republic or against a Mexican. So in fact it is prescribed by the penal code which in this particular is in force throughout the country, by its articles 184 to 187. In the edition of that code prepared by the licentiate A. Medina y Ormaechea, the following is found in a note: “The commission made a careful examination of this matter and decided to adopt the principles generally admitted, which are those described in the aforesaid article (184–189). It was not unknown to it that England and the United States only punish offenses committed in their territory, [Page 859] but it appeared to the commission more proper and just to punish those coin, mitted abroad against the Republic, as well as those committed abroad by Mexicans against Mexicans or foreigners or by the latter against Mexicans; for in such eases the principle upon which the right to punish rests is fully applicable—that is, justice joined to utility * * *,”

In the United States themselves the practice of regarding as not punishable offenses committed in a foreign country is not so constant and uniform as might be supposed. We have already seen that, according to Wheaton, this principle is frequently overlooked in positive legislation. The learned jurist Edward Livingston proposed for the penal code of Louisiana the following provision: “Citizens or inhabitants of the State may be punished for acts committed out of the limits thereof in those cases in which there is a special provision of law declaring that the act forbidden shall be an offense although done out of the State.” (Works of Livingston, Vol, II, par, 18.)

It is of record, moreover, that in 1794 the Pennsylvania court proceeded against the French governor of Guadeloupe, who was temporarily in the United States, on account of the unauthorized capture of a vessel beyond the waters of the latter country, and this in the absence of an express law (such as we ourselves have) authorising it to try an alien for any acts which had taken place abroad. It is true that it does not appear that the competence of the court was brought in question, although there was a complaint by the French minister; but as it was incumbent upon the court to examine in the first place whether it could take jurisdiction of such proceedings, and as Attorney-General Bradford made no allusion whatever to this point (Opinions of Attorney-General, vol. I, par. 45), this at least proves that there is a natural belief in the justice of punishing an act committed in a foreign country, whatever be the nationality of its author, if it attacks the interests of the country, or of the citizens of the country, where the person who committed it may subsequently be found. Thus the ground on which our criminal legislation in this particular rests is clear.

Under that legislation the offences committed abroad by a foreigner are not punished save when they injure Mexico or a Mexican. “No society takes concern in any crime but what is hurtful to itself”—as Lord Karnes has said: (Karnes on Equity, B. 3, ch. 8, sec. 1). A further condition is demanded by our code, and therein we bare to admire the prudence of the lawgiver who in this manner reconciled the respect due to these principles: “There is no offense where there is no infraction of a law,” and “the law prescribed by a sovereign is not binding oh those who are not subjects, save in his own territory.” Our legislation is in this way reduced to one of the alternatives which have been adopted by modern nations, as Fiore observes (Droit Inter. Priyé, cap. 5), avoiding in the question the two opposing extremes. The condition referred to is thus expressed in our code: “That be infraction of which the party is accused, be he Mexican or foreigner, shall possess the character of an offense in the country where it was committed and in the Republic.” (Art. 186, par. 4.)

To the American authorities which I have cited to prove that even in the United States (notwithstanding the allegation that they have adopted the principle of the common law) this point, as a doctrine of public or international law, is sometimes controvertible, I must add all that Story says in his Conflict of Laws, chapter 16, and especially what his commentator Redfield says (6th edition of that work, sec, 625 b) with reference to a decision given in the State of New York. He thus decidedly expresses himself: “Although the penal laws of every country are in their nature local, yet an offense may be committed in one sovereignty in violation of the laws of another, and if the offender be afterwards found in the latter State he may be punished according to the laws thereof, and the fact that he owes allegiance to another sovereignty is no bar to the indictment.”

Now, then, our legislation, and especially article 186 of our penal code, as respects the punishment of some offenses ay foreigners committed outside of the country, is in accord not only with the most authoritative doctrines of private international law (of Foelix, Voet, Boehmer, Martens, Saalfeld, and Pinheiro Ferreira, to whom Fiore might be added by reason of his general theories), but also with the positive legislation of several nations which command profound respect in such a matter, such as France and Austria, where such offenses are punished if they have been committed against the nation; Prussia, where they are all punished in conformity with the law of the country wherein they are committed; Bavaria and Norway, without this characteristic and without the requisites and conditions exacted by our code. You will find this demonstrated in the essay upon the case of Cutting, published by an intelligent judge of this capital, in the number of El Foro which I send you under separate cover.

It is clear, therefore, that our law-makers not only exercised the right they had to define the point of international law to which I refer, in one or the other sense, because it is a matter open to discussion, but that they adopted the interpretation which finds the greatest number of adherents among civilized nations, and which, moreover, was in harmony with the system of jurisprudence which obtains in our Republic.

I am thus urgent in defending article 186 of our penal code, to which I called your attention in a telegram as being applicable to the case of Putting, not because I [Page 860] deemed it indispensable in order to prove the competence of be Mexican courts in this case, since, as you will see by the sentence of the court which is annexed to this note, the offense committed in Texas by Cutting may also be taken, and is taken with good ground, as a continuation of the offense which he had committed in Paso del Norte, whither he subsequently came to render it complete by circulating what he had published in El Paso. It has not at this time been my principal desire to uphold the justice of the action of the court in assuming competence, but to make reply to certain observations, entitled to respect because coming from Mr. Secretary Bayard, against our penal legislation, and to defend the good name of Mexico, because I am interested in not having its laws thought singular and contrary to the principles of international law.

Provided they be found in conformity with those principles as they are understood by many other nations, it is clear that the inconveniences which may result to our neighbors from their application in this country can in nowise be made the basis of a charge against us. If in Mexico the manner of trial is different, if the proceedings in the criminal branch are diverse from those followed in the United States, and if it be possible that the law may sometimes repress in our republic acts which are permitted in the other, these are evils (supposing that they merit this name) which do not solely affect the American who may come to Mexico after having injured (in the sense of our laws) this country or one of its citizens; they likewise affect every one who comes to our territory without having done such wrongful acts, if he do not care, as every foreigner should, to ascertain what are the principal points of difference between the legislation of his country, with which he is familiar, and the new legislation to which he becomes subjected.

The inconveniences of this natural difference between the two systems of law are not, moreever, so very grave; because there must ever be, in their main aspects, a similarity between the guaranties accorded to an accused person in Mexico and those accorded to him in the United States—a similarity which, in this regard, is noticeable among civilized nations, and becomes greater when they are governed by the same institutions. As for the definition of certain acts as offenses, there does not seem to be diversity or conflict between the two countries; and even if there should be in some future case, it could never occasion any inconvenience to American citizens, since article 186 of our penal code, which has called forth these remarks, does not declare punishable (as has already been seen) the act committed by a foreigner abroad, except when such act is “of a criminal character in the country wherein it was committed and in the republic.” Neither is there any noticeable difference between the penalties with which the offenses are punished within the one country or the other country. The proof of this is that in the case of Cutting, for example; the maximum of the penalty which may be applied in conformity with article 646 of our code is ‘the same, with a slight difference in the amount of the fine, as might have been applied in conformity with article 617 of the code of Texas.

I think, therefore, that the observations made by Mr. Bayard, in his message to the Congress of the United States, based upon the supposed inconveniences which I have noticed and which that gentleman fears may result from our legislation, have been the result of erroneous reports received by him concerning our country.

For the rest, I am convinced of his high enlightenment and perfect uprightness as evidenced by the prudent conduct he has observed after being informed, through my note to Mr. Jackson, that it was impossible for our Government to order the immediate release of Cutting. I also regard as sincere the assurances he has conveyed to you, in this relation, of his friendly consideration toward Mexico. On our side we have a like sincere and profound consideration for the Government of the United States, upon whose wisdom and sense of justice we rely with the fullest confidence for the hope that if in any event, being misinformed, it does not speedily recognize the right which is on our side, it will never refuse to hear us, and if it knows the whole truth, to do us justice, recognizing our disposition, inspired by sentiment and conviction joined to our mutual convenience, to strengthen the most cordial relations between the two countries.

You are authorized to make use of this note in the manner which your prudence may suggest and according to circumstances.

I repeat, etc.

[Inclosure 2.]

Mr. Mariscal to Mr. Romero.

In my note No. 977, bearing date of yesterday, I informed you that I would send an examination of the Cutting case, which had been published by the licentiate José M. Gainboa, judge of this capital. I now send it in the inclosed copy of El Foro, a [Page 861] journal which is devoted to legal matters. In doing this, while recognizing the merit of this examination, I must add some explanations of my own to those contained therein on the subject of the laws of other countries, as being more or less similar to the provisions contained in article 186 of our penal code.

The French law in the matter of punishing foreigners found in the country after they have committed a crime outside of its territory, is almost the same as the provision contained in the code of 1808 relative to the preliminary examination of criminals. The law of July 3, 1866, introduces a few modifications only in the portion relating to crimes and offenses committed by French subjects in foreign countries.

I must now devote some special attention to a fact which is highly important in connection with our aforesaid article 186. The fact to which I allude is that that article agrees in all its essential points with the provisions of the last penal code adopted in Italy. This is highly honorable to those jurists who prepared our own penal code six years previously. That honor is based not only upon the fact that Italy is a nation that has made very great advances in legal science, that she is the cradle of Roman law, and in a country that has ever been distinguished for its profound lawyers; it is based, moreover, upon special circumstances which I will state hereafter. The code to which I refer was laid before the Italian Chamber of Deputies by that eminent statesman and professor of law, P. S. Mancini, then minister of justice, and chairman of the committee that put the code in its final shape. In his statement of reasons which preceded it Mr. Mancini, after mentioning the numerous commissions and scientific or public bodies that had successively revised it, expressed himself as follows:

“Hereafter no one person in Italy can claim the authorship of the penal code. Being the fruit of fifteen years of reflection and constant study, it is the collective work of the most trust worthy and authoritative depositaries of the traditions of the Italian school, of the most competent representatives of legal science and medical jurisprudence, of the practical experience of the magistrates and courts of Italy, and of the most vigorous minds of the country. It may well be called a national work.”

Now, then, this code, whose first book, as far as article 119 (110?) was approved by the aforesaid chamber in 1877, contains the following provisions, which I translate literally:

  • Article 5. A native citizen or a foreigner who commits a crime on foreign soil against the safety of the state, or the crime of counterfeiting money having a legal circulation in the kingdom, or that of counterfeiting the seal or the bonds of the public debt of the state or of documents of the public credit, shall be tried and sentenced according to the laws of the kingdom.
  • Article 6. (Refers to other crimes and offenses committed by Italians in foreign countries.)
  • Article 7. Crimes or offenses committed in foreign countries not included in the cases mentioned in article 5 by a foreigner to the detriment of a citizen or of the state of Italy, and punishable by the laws of the Kingdom as well as by those of the state in which they are committed, when the guilty party has come in any manner into the state, and when offenses are concerned in which a complaint has been made by the injured party, may be tried by the courts of the Kingdom, the mildest law being enforced. * * *
  • Article 8. The provisions of Articles 6 and 7 are not applicable:
    • “(1) When, according to either law, penal action is no longer admissible.
    • “(2) When crimes are concerned for which, according to the second paragraph of the ninth article, extradition is not permitted (political crimes or crimes connected therewith).
    • (3) “When the prisoner, having been accused in a foreign country, has been acquitted, or if he was convicted, when he has suffered the penalty, or when the time for inflicting the same has passed. If he has not suffered the full penalty the trial may be renewed by the courts of the Kingdom, allowance being made for the portion of the penalty already suffered.”

These quotations are sufficient to show that, with the exception of the provision directing the enforcement of the lightest penalty by both laws, and with the exception of merely political crimes, article 5 of the Italian code is substantially article 185 of ours, and that article 7 is substantially 186 of our code, which latter article has occasioned so much talk in the Cutting case. There is another difference, which is that the Mexican code requires, in its fifth division, that the offenses with which a foreigner is charged should render him liable to a severer penalty than imprisonment for eleven months, whereas that of Italy establishes no such limit. The general provision of our article and four of its five requirements are produced in that which I have cited. This is a very remarkable coincidence in such a matter, in which a nation may freely choose, without rendering itself liable to censure, between two rival doctrines, paying due attention to territoriality, personality, or the extraterritoriality of the penalties.

Let us now examine, although very briefly, the reasons which Mr. Mancini had to adopt the provision contained in article 7 of the Italian penal code, “I have examined [Page 862] the subject says he taking as say guides the sound and generally accepted principles of international taw. The first among these is that of the reciprocal independence of nations and of the political sovereignties which role them.

“This principle intrusts the guardianship of public order in every country to the action of the national Government exclusively, and prohibits, with jealous care any interference on the p art of any foreign Government. It is difficult to reconcile with this principle that which grants to any sovereignty, without any special legal title, promiscuous jurisdiction for the repression of disturbances of public order committed in foreign countries, when the disturbers are not citizens of the country inflicting the punishment. * * * It is, however, necessary to seek a special title, one that will put in motion, in determinate cases, the penal jurisdiction of a state in the case of crimes committed in foreign countries. This title can not be the same in the case of crimes committed by our citizens and in that of those committed by foreigners.

“In none of these cases, however, should the authority of the law-maker be confounded with the jurisdictional competency of the judge.”

Mr. Mancini then goes on to show that the origin of the right of a country to punish one of its citizens, when he has committed a crime in a foreign country and has returned to his own, is not only the personal statute, but also the public weal; and after various considerations he adds:

“On the other hypothesis, viz, that the person, who has committed a crime in a foreign country is a foreigner in a case in which his offense has done injury to one of our citizens; or in general to the state and the Italian Government, and when, moreover, the act committed is regarded as a crime by both nations, it is understood that society in both countries is interested in having the offender brought to justice so that social order may be maintained; hence arises a legitimate promiscuousness, both in the exercise of legislative authority and in the jurisdiction of the courts, although with the same order of prejudice and preference.”

I will not prolong my quotations, it being my object simply to call your attention to Mr. Mancini’s statements since by his authority and by the reasons adduced by him, it is shown that our article 186 is not at variance with the first principles of law. That it mainly resembles the provisions contained in the latest penal code of Italy, as you very correctly stated to Mr. Bayard, is shown by the quotations made in the present note; and although it is true that that code is not yet in force, that fact is a wing to difficulties connected with its second part, which has not yet been revised by the chamber of deputies of that country, not on account of anything connected with Book 1, which was definitely approved in 1877, as I have already remarked. Our article likewise bears a resemblance to the laws of various other European nations, on the general point of the punishment of crimes committed by foreigners in foreign countries, when such foreigners afterwards come to the country, and thus become amenable to its laws. This is seen by the quotations made from foreign codes in the examination of the “Cutting case, made by Judge Gamboa. It must not be thought, therefore, that it is at variance with international law, whatever allegations have been made against it.

I herewith send you a list of the principal countries whose laws punish crimes committed in foreign countries by subjects of the state, and also of those whose laws declare them liable to punishment even when they have been committed by foreigners.

I reiterate to you, etc.,

[Inolosure 3.]

Nations that punish crimes committed in foreign countries by their own subjects.

  • France: Code for the preliminary examination of criminals and law of July 3, 1866.
  • Bavaria: Penal Code of 1861.
  • Austria: Penal Code of 1872.
  • Prussia: Penal Code of 1851.
  • Wurtemberg: Penal Code of 1839.
  • Saxony: Penal Code of 1838.
  • Italy: Penal Code of 1859.
  • Belgium: Law of October 30, 1836.
  • Portugal: Penal Code of 1852.
  • Baden: Penal Code of 1845.
  • Grand Duchy of Oldenburg: Penal Code of 1814.
  • Greece: Penal Code of 1834.
  • Holland: Code regulating the preliminary examination of criminals.
  • Brunswick: Penal Code of 1840.
  • Grand Duchy of Hesse: Penal Code of 1841.
  • Ionian islands: Penal Code of 1841.
  • Norway: Penal Code of 1841.
  • Russia: Penal Code.
  • German Empire: Penal Code enacted by the law of May 15, 1872.
[Page 863]

Nations that punish, more or less, crimes committed in foreign countries by foreigners (when much foreigners enter their territory.)

  • France: Code regulating the preliminary examination of criminals, and law of July 3, 1866.
  • Austria: Penal Code.
  • Prussia: Penal Code.
  • Portugal: Penal Code.
  • Italy: Penal Code of 1859, and Book 1, approved in 1877, of the code introduced by Mr. Mancini.
  • Belgium: Penal Code.
  • Bavaria: Penal Code.
  • Norway: Penal Code.
  • Wurtemberg: Penal Code.
  • Saxony: Penal Code.
  • Baden: Penal Code.
  • Oldenburg: Penal Code.
  • Brunswick: Constitution, article 205.
  • Hanover: Penal Code.
  • German Empire: Penal Code enacted by the law of May 15, 1872.
[Inclosure 4.—Translation.—Editorial from El Foro, a journal of legislation and jurisprudence, August 0, 1886, published in the City of Mexico.]

the cutting affair.

In the general expression whereby the whole press has put forth its Unanimous opinion as to the justice which, in this matter, is on the side of Mexico, El Foto has not permitted its voice to be heard, because it desired to speak with perfect knowledge of the case in order to treat it in a manner befitting the character of our journal, and from a purely scientific point of view. Now that we have obtained the fullest details of the incident, it enters into the field of discussion, and does so with positive pleasure, for our course as Mexican journalists would be unseemly did we not raise our voice in favor of our country, and the more so as the case comes within the legitimate province of our journal, being a question of private international law.

The facts of the case, separated from those which lack importance, are very simple.

Seor Medina was insulted by Mr. Cutting in a publication made by the latter in Paso del Norte, and made complaint thereof, accordingly, before the local judge. Thereupon an amicable composition (conciliacion) was effected, whereby the affair was terminated through the formal offer of Cutting to apologize to Medina in the same publication which had served as an organ for defaming him.

This, in fact, he did, although putting the apology (retractación) in microscopic type; but shortly after Cutting crossed the Rio Grande and in El Paso, Tex., caused to be inserted in the newspaper El Centinela the same attack and the same insults which had been retracted before the judge of Paso del Norte when the act of composition was made effective.

Being in favor of clearness of statement in such questions we intentionally refrain from engulfing ourselves in the difficult field (sic) of metaphysics, and consequently we do not in any way connect the composition of which we have just spoken, the origin of which was an offense committed in Mexico, with the injuries inflicted through the means of El Centinela (he means, the El Paso, Tex., Herald); and in order to enter at once upon the question with all its apparent difficulties, we will take it for granted that not even the remotest relation exists between the two acts stated.

We set out, therefore, with those which took place on American soil, which we set forth in the following terms in order to leave the question completely clear and simple: A certain Mr. Cutting who did not even personally know a certain Señor Medina, attacked the latter by means of El Centinela (the El Paso, Tex., Herald), a journal published in El Paso, Tex., carrying his attack to the extreme of calling him “a fraud” (estafador, which literally means a swindler) or, in other words, defaming him, on the assumption that, as defined by article 642 of the Mexican penal code, “defamation consists in communicating with malicious intent (dolosamente) to one or more persons the imputation that another has done an act, whether true or false, specified or vaguely expressed, which may occasion him dishonor or discredit or expose him to the contempt of any one.”

Señor Medina, who is a Mexican and a resident in Paso del Norte, went before the judge of that place accusing Mr. Cutting of defamation; and as it seems that Cutting-came to Paso del Norte, the Mexican judge arrested him and put him in jail.

Cutting without in any way defending himself before the judge who conducted the proceedings, applied to Mr. Brigham, the American consul in Paso del Nor fee, who, [Page 864] in turn, addressed himself to the Secretary of State, at Washington, Mr. Bayard, who, giving ear to the complaint, initiated a complaint, in the diplomatic channel, through the American minister in Mexico, Mr. Jackson.

* Insertions in and additions to this list are made from pages 39 and 40 of the Mexican official publication on the case of A. K. Cutting.

These facts being stated, we will now reply to the questions of law involved therein, which are as follows:

Has the conduct of the authorities of the State of Chihuahua been legal and proper?

Is the diplomatic resort admissible in the case?

In the United States, as in Mexico and as in every cultured nation, is understood by trial (juicio) the lawful contention of the plaintiff and the accused before a competent judge; and from this definition it follows that the competence of the judge before whom the debate takes place is one of the essential requisites for the existence of the action. For this reason, jurists designate the question relative to the competence of the judge as preliminary or anteceding procedure.

As respects the case under consideration, the meaning of this word competence has been confounded with that of the phrase jurisdiction. The truth is there are radical and profound differences between them. ‘“It is necessary,” say several celebrated commentators*, “not to confound jurisdiction with competence. The former is the power wherewith judges are invested to administer justice; and the latter is their capacity (facultad) to take cognizance of certain matters, either from the very nature of the thing or by reason of the persons—the first is generic, the second specific. * * *”

But these same differences, the shade of meaning of which is admirably expressed in the doctrine cited, do not exhibit any importance in cases like the present, in which it is much the same whether we speak of the genus or the species, and therefore, in this paper we shall indifferently make use of the words competence and jurisdiction.

It is indubitable that the local judge of Paso del Norte possessed competence to order and carry into effect the arrest (detencion preventiva) of Mr. Cutting. Why? By reason of the provision of article 186 of the penal code of the’ district, which is in force in the State of Chihuahua.

The text of this provision is as follows:

“Offenses committed in foreign territory by a Mexican against Mexicans or against foreigners, or by a foreigner against Mexicans, may be punished in the republic and in conformity with its laws, if the following conditions are found joined in the case:

“That the accused party should be in the Republic, whether because of having voluntarily come hither, or by reason of having been extradited.
“That, if the injured party be a foreigner, complaint shall have been made by the legitimate party.
“That the accused shall not have been finally tried in the country where he offended, or, in case he has been tried, that he shall not have been acquitted, amnestied, or pardoned.
“That the breach of law whereof he is accused shall be considered an offense in the country where it was committed and in the Republic.
“That in conformity with the laws of the latter the breach of law shall entail a more severe punishment than that of greater detention (arresto mayor)

An attentive perusal of this express precept of the law, and a knowledge of the facts of the case, are sufficient to enable simple common sense to approve the conduct of the judicial authority of Chihuahua. In effect the concurrence of the five conditions prescribed by the above cited article 186 is beyond a doubt.

Mr. Cutting came to the Republic voluntarily;
Señor Medina, notwithstanding that he was a Mexican, brought action in due form;
Mr. Cutting was not only not tried, but he was not even under accusation in the United States;
The defamation of which Señor Medina complained is considered an offense both in Mexico and in the United States. The penal code of the State of Texas, promulgated July 24, 1879 (Title XVI, article 617), punishes defamation by means of a printed libel with a fine of not more than $2,000 and imprisonment in the county jail not exceeding two years. And article 644 of the Mexican penal code, above referred to, reads literally thus: “Insult, defamation, and calumny are punishable, whatever be the means employed to commit those offenses, such as spoken words, manuscript, or [Page 865] printed writing, telegrams, engraving, lithography, photography, drawing or painting, sculpture, dramatic representations, and gestures.”

Finally the penalty assigned to the defamer who imputes a criminal offense to the person defamed* is greatly in excess of “arresto mayor,” since article 646 of our penal code prescribes that “Defamation shall be punished with the penalty of from six months of detention to two years of imprisonment, and a fine of from $300 to $200, when the imputation is of a criminal offense, or of some deed or vice, which may occasion to the offended party dishonor or serious prejudice.”

After this, can any one rationally doubt tie justice of the proceedings of the judicial authority of Chihuahua?

The provision of article 186 of our penal code is not in discord with the principles of international law. This article 186 being modeled upon articles 5 and 7 of the French code of criminal procedure, let us hear what is said in respect thereto by one of the most distinguished expounders of penal law in that nation.§ “The most conspicuous of these cases (those in which a foreigner is punished for an offense committed in a foreign country) are: First, those where the crime, although committed beyond the frontiers of the state, is against the state itself, attacking its existence or its domestic or foreign security or its public wealth; secondly, those of the nature of common crimes against individuals, where the guilty party, coming into the national territory, brings with his person the danger of repeating the crime (reincidencia), a menace to public order, a provocation to contention, and the peril of bad example. The social interest of the state is even greater if the guilty party is one of its own citizens, or if the offense has been perpetrated against one of its citizens.

The authoritative publicist, Mr. Foelix, in approving the provisions of articles 5 and 7 of the French penal code of criminal procedure and in giving his opinion in the same sense as we have seen that Ortolan has done, cites five notable writers who belong to the same communion of ideas in this respect: Voet, Boehmer, Martens, Saalfeld, and Pinheiro Ferreira; and when he takes up the positive laws which have been enacted on the subject, he shows us that article 186 of our penal code is not alone in agreement with the French code, but also with those of the Italian countries, of the German States, and of Norway.

It being thus demonstrated how much in conformity is the Mexican law with the principles of international law, as well as the justness of the proceedings of the authorities in Chihuahua, which proceedings were in strict subjection to the text of [Page 866] the law, it is opportune to analyze, although briefly, the conduct of Mr. Cutting and of his consul, Mr. Brigham.

All civilized nations, according to the authoritative declaration of the publicist we have just cited (Foelix), agree that, in the matter of the proceedings of courts, that is to say, in trials (enjuieiamiento), the sole applicable law is that of the place in which the trial is conducted. “The competence of the authorities and the form of procedure before them are controlled by the law of the country where the action is instituted, whatever may be the law under whose empire have occurred the acts which give rise to such action. In effect, it follows from the principle of the independence of states that the organization and the competence of the authorities of each one of them cannot be dependent upon the laws of another state; and, likewise, the formalities to be observed by the parties for the institution and conduct of an action before the authorities, as well as the rules to be observed by these latter in rendering a judgment, can not derive their sanction except from the law of the same territory; otherwise these authorities would depend in fact upon the state whose laws laid down the rules of their conduct. No example is found of a nation having accorded any effect whatever, in its own territory, to foreign laws concerning the competence of the authorities and the form of procedure before them.”

“The formalities of which we have spoken are comprised under the designation of acts ordinataride litis, as distinguished from such as belong to the basis of the action itself, which are called decisoriae litis. * * *

“The authorities are unanimous in admitting the principle thus enunciated in this section. We refer to Fabre, Paul, Voet, Sande, Burgundus, Rodenburg, Boullenois, Bouhier, Mevius, Hommel, Hert, Weber, Gluck, Danz, Tittman, Meier, Merlin, Messrs. deLinde, Muhlenbruch, Mittermaier, Wening-Ingenheim, Pardessus, Henry, Kent, Wheaton, Rocco, and Burge.”*

Now then, the law of criminal procedure of Chihuahua provides and regulates the manner of substantiating a question of competence.

Articles 286 and 410 to 413 of the Code of Criminal Procedure in force in Chihuahua are as follows:

  • Article 286. If the accused party desires to found an exception upon the incompetence, or any other exception which extinguish the penal action in conformity with title vi, book 1, of the penal code, a separate proceeding shall be followed in conformity with articles 410 to 413.
  • Article 410. Any of the exceptions mentioned in the preceding article having been set up, the judge shall appoint a day for hearing the same, and order the parties to be summoned. The hearing shall take place within eight days thereafter.
  • Article 411. The day of the hearing, the accused party being present, if he so desire, the defending counsel shall present his exceptions, the civil party shall set forth whatever he may deem conducive to his rights, and the public ministry shall present and argue its conclusions.
  • “If testimony be demanded, and the judge decide the demand in order, it shall be taken in the said hearing.
  • Article 412. The judge shall render a decision upon the exceptions within three days at the furthest.
  • Article 413. The decision to which the preceding article refers may be appealed from by either side. The motion for appeal shall be made at the time the decision is made known, or at latest within three days thereafter, and shall be heard in the superior court, following there the same procedure as is prescribed in the three preceding articles. The decision in the second instance shall be executory.”

The task of Mr. Cutting and his consul was, consequently, easy and simple. Instead of engaging Mr. Bayard’s attention, it would have sufficed for them to raise the question of competence (if they believed the judge of Paso del Norte to be incompetent) by refusing to acknowledge his jurisdiction. The decision of that judge, if they considered it contrary to their rights, was open to appeal for all its effects, and for that reason the case would have been passed upon in review by the (superior) court of Chihuahua, where it was certain to have all the enlightenment of magistrates learned and expert in the science of the law.

Our laws have wisely foreseen the cases where diplomatic intervention is admissible. The new alien law, of the 28tli of May of this year, has provided that:

Article 35. Foreigners are obliged to contribute to the public expenses in the manner prescribed by the laws, and to obey and respect the institutions, laws, and authorities of the country, submitting themselves to the decisions and judgments of the courts, without attempting any other resorts than are conceded to Mexicans. They can only appeal to the diplomatic channel in case of denial of justice or intentional delay in its administration after having exhausted in vain the common resorts created by the laws and in the manner determined by international law.”

[Page 867]

The same spirit inspired the law of November 26, 1849:* and it is even more explicit in its declarations.

And the doctrines taught by international law are identical with the laws just quoted.

When there could have been no denial of justice nor delay in its administration, since the law had begun to take its first steps and the first pages of the proceedings were already recorded, was recourse to the diplomatic channel authorized?

We have concluded for to-day, and although—we say it with sincerity—we put forward no pretension of our own merit, so abundant and great is the justice of the cause of Mexico that we trust we have begotten in the minds of our readers the following deep convictions:

The authorities of Chihuahua have proceeded legally.

Mr. Brigham and Mr. Cutting mistook the path they should have followed, since, instead of subjecting themselves to the law ordinatoriae litis and denying the jurisdiction of the judge, they applied to Mr. Bayard.

It can not be said that even most remotely had the case become fit for diplomatic treatment.

We say it without vainglory, every nation which boasts of culture—and among them we are pleased to count the United States—must reach this conclusion: That in Cutting’s case the right is on the side of Mexico.

José M. Gamboa.
  1. This is a mistake. The second publication was in the El Paso (Texas) Herald. El Centinela was Cutting’s paper, published at Paso del Norte, Mexico.—Translator.
  2. Manresa, Miguel, and Reus—Commentaries on the Spanish Law of Procedure, Mexican ed., vol. 1, p. 4.
  3. Arresto mayor is detention, without labor, for from one to eleven months, as distinguished from arresto menor, which lasts from three to thirty days. If the detention exceeds eleven months, it is called in Mexico “prision,” imprisonment. See article 124, Mexican Penal Code.—Translator.
  4. In due order that hot the slightest doubt may exist as to our good faith, we hasten to say that the bringing of an action was indispensable, although not because the offender was a foreigner, but because the offense was defamation.
  5. Cutting called Medina estafador (swindler), and swindling is considered a criminal offense in article 414 of our penal code, and punished with the penalty assigned to theft (robo) in the succeeding article 415.
  6. Arresto mayor,” says article 124 of our penal code, “shall last from one to eleven months, and when by accumulation of two penalties it exceeds the latter term, it becomes converted into imprisonment (prision).”
  7. Article 66 of our penal code says: “Every temporal punishment shall be of three degrees, namely: Minimum, medium, and maximum, except when the law fixes only the first and the last. In such a case the judge may apply the penalty he deems just, within the two limits assigned.
  8. Ortolan.—Eléments de droit pénal, No. 377.
  9. Foelix.—Traite de droit international prive, No. 574.
  10. Foelix, Op. cit., Nos. 578 to 596. The following is the text of some of those codes:

    “If a foreigner has committed a crime or offense, outside of our states, against the constitution of the monarchy or to the prejudice of the public effects or the moneys of our states, he is treated as a subject and punished according to the present law. If the crime or offense do not come within the categories specified in the foregoing article, the foreign offender shall be arrested, and concerted action shall be promptly taken with the state in whose territory the crime or offense was committed, for his extradition. If this state refuses to receive him or to proceed against him in some other way than the present law prescribes, then proceedings in conformity with the present law shall he had against the offender. * * *” (Sections 32, 33, and 34 of the penal code of Austria.

    Foreigners under prosecution for crimes or offences committed outside of the Kingdom shall be punished in conformity with the law of the place where the crime or offense was committed.” (Section 14, part II, title 29, of the criminal code of Prussia.)

    “Foreigners shall be tried, in conformity with the provisions of the present code, for any crime or offense which they may commit within the territory of the Kingdom; they shall not be so tried for breaches of law committed in a foreign country, unless such infractions injure our person, or the State of Bavaria, or one of our subjects.” (Article 4 of the penal code of Bavaria.)

    “Foreigners shall be tried according to the laws of the Kingdom, and by its courts, on account of the crimes or offenses which they may commit, in the Kingdom or out-side thereof, if they thereby injure Norway, or Norwegian subjects, or lastly, foreigners who are found upon Norwegian vessels.” (Section 2 of the penal code of the Kingdom of Norway.)

  11. Foelix, op. cit. No. 125. (Foelix’s text has been translated from the original, volume 1, pages 275–277. where reference is shown to each of the authors cited.—Translator.)
  12. “When, upon the complaint of a commercial agent, or without the intervention of such agent, a reclamation is presented to the General Government concerning matters which, according to the laws of the country, should be decided by the Federal or State courts, the following points are to be borne in mind in disposing thereof:

    • “1. That, according to the general principles of international law, according to the express stipulations of the treaties which bind the nation, and according to the provisions of the Federal Constitution, all foreigners enjoy the same guarantees and rights as native citizens as far as the administration of justice is concerned.
    • “2. That it is the duty of the Government to use all the means placed at its disposal by the Constitution and the laws, in order to make this principle of equality and justice a reality for them.
    • “3. That consequently, neither with a view to injuring nor favoring foreigners, can any measure be adopted impeding or delaying the institution or the continuance of the legal proceedings whereby the case is to be decided, nor any measure looking to the appointment of extraordinary investigating judges, or designating courts other than those which are competent according to the laws of the country.
    • “4. That, according to an elementary rule of the common law, the last sentence pronounced in a legal case is regarded as being just, and as being proper to be executed in the country in which it is promulgated.
    • “5. That when, in cases determined by international law, a reclamation or complaint is made on account of denial of justice or intentional delay in the administration thereof, it must be fully proved that such outrages are real and manifest, that the laws of the country have been notoriously violated, and that, in order to obtain justice, proper and sufficient allegations, petitions and appeals have been made and sustained at such time and in such manner as the said laws prescribe, according to their provisions, in order to secure judicial correction of these abuses, or lawful redress for the damage thereby occasioned without these steps having produced their legal effects through the manifest fault or negligence of the judicial authorities which took cognizance of the case.
    • “6. That, the same proof being presented, the Government shall use the means placed at its disposal by the constitution and the laws, to the end that complaints concerning the execution of sentence from which there is no appeal may receive proper attention. Those, however, which provide for a payment for which the Government is responsible, can not impair the exact execution of the conventions relating to the public debt, nor the laws concerning the execution of awards made against the federal treasury.” (Article 13 of the law of November 26, 1859.)

  13. We quote from the celebrated Repertorio of Dalloz the following ideas (under the heading of Denial of Justice”): “There is a denial of justice whenever the judicial authority refuses to pronounce a formal judgment upon the main case or upon any of its incidents in the proceeding before it; but, standing alone, the fact of deciding upon either the main or the incidental question, in whatever sense it be, can not be alleged as a denial of justice, even though it may be said that the decision is iniquitous or contrary to express law. As for delay in the administration of justice, it ceases to be intentional if the judge bases it upon any reason of law, or upon any-physical impediment which he is unable to avoid.”