No. 494.
Mr. Romero to Mr. Bayard.
[Translation.]
Mexican
Legation,
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.,
[Inclosure 1.]
Mr. Mariscal to
Mr. Romero.
Office of Secretary of State and Foreign
Affairs,
Mexico, August 12,
1886.
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.
Department of State and of Foreign
Relations,
Mexico, August 13,
1886.
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:
- (1)
- “That the accused party should be in the Republic, whether
because of having voluntarily come hither, or by reason of
having been extradited.
- (2)
- “That, if the injured party be a foreigner, complaint
shall have been made by the legitimate party.
- (3)
- “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.
- (4)
- “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.
- (5)
- “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.
- (1)
- Mr. Cutting came to the Republic voluntarily;
- (2)
- Señor Medina, notwithstanding that he was a Mexican, brought
action in due form;‡
- (3)
- Mr. Cutting was not only not tried, but he was not even under
accusation in the United States;
- (4)
- 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.
