Mr. Romero to Mr. Bayard.
Washington, August 30, 1886. (Received September 1.)
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.,
- 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.↩
- Manresa, Miguel, and Reus—Commentaries on the Spanish Law of Procedure, Mexican ed., vol. 1, p. 4.↩
- 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.↩
- 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.↩
- 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.↩
- “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).”↩
- 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.”↩
- Ortolan.—Eléments de droit pénal, No. 377.↩
- Foelix.—Traite de droit international prive, No. 574.↩
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.)↩
- 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.)↩
“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.)
- 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.”↩