Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part II

No. 767.
Mr. Connery to Mr. Bayard.

[Extract.]

Legation of the United States,
Mexico , February 21, 1888. (Received March 1.)

No. 306.]

Sir: I have now the honor to transmit herewith a translated copy of the long reply of Mr. Mariscal, dated the 10th instant, to my note of November 15, 1887, relative to the case of A. K. Cutting. So much time has been occupied in making the translation, that I have been unable to prepare a copy of Mr. Mariscal’s note in the original Spanish. However, this will be forwarded to you in the course of a few days.

I content myself with merely expressing regret that Mr. Mariscal has not met your proposition in the same spirit of conciliation displayed in your comprehensive instructions to me. In his zeal to put forward a clever answer it appears to me he has overlooked or belittled the real object of the discussion, namely, the removal of a probable cause of trouble between two countries whose interest it is to live always on the most friendly terms. Mr. Mariscal seems to forget that the continued existence of article 186 of the Chihuahua penal code is, and only can be, a danger for Mexico itself.

I am, etc.,

Thomas B. Connery.

[Inclosure 1 in No. 306.—Translation.]

Mr. Mariscal to Mr. Connery.

Department of Foreign Affairs,
Mexico , February 10, 1888.

Mr. Chargé d’affaires: I had the honor to receive your note, dated the 15th of last November, in which, under instructions from your Government, you re-open the consideration of the case of A. K. Cutting, a citizen of the United States, matter of discussion since a year and a half ago between the two countries. You commence by saying that the re-opening of this case will hardly surprise me. In effect advice had reached me that, by order of the Department of State, at Washington, the questions relative to extraterritorial jurisdiction as connected with the said case were subject of very careful study. I could well expect, therefore, to receive some proposition for the conventional arrangement of this matter by means of a treaty whereby both parties might modify the legislation in force in the territory of each. That would not have surprised me, no matter what reply 1 might have given in the name of the Mexican Government to such a proposal; yet I frankly confess my surprise at seeing the discussion renewed with the dual purpose of asking, or preparing to ask, for an indemnity in favor of the aforementioned Cutting, and of requiring that Mexico alone should modify her legislation, or rather that of the several States of the Mexican Union, because, as is alleged, that legislation antagonizes international right.

I will not now dwell upon the notorious character of the claimant, whom I thus style, for it is a well known fact that it was Cutting who presented this claim without even specifying the amount involved; nor will I enlarge upon the filibustering schemes with which that person has unceasingly threatened Mexico, for I would be answered that in a question of principles personalities should be ignored. Nevertheless I can not forbear from observing that when a Government like that of the United States decides to impart its protection to a person in the present circumstances of Cutting, it must be profoundly convinced of the justice of its course, and I therefore regret that such has become its conviction, for in the judgment of the Mexican Government this claim has no solid foundation. It was to have been hoped that, as you stated, the excitement (due to accidental causes) provoked by the first discussion of the imprisonment of Cutting having passed away, Mr. Bayard would give ear to our arguments, and after re examining the questions would become convinced that the two counts of the petition explicitly set forth in your note could not be insisted upon without a violation of that justice and equity which is binding upon all nations.

Both counts have a common basis, the pretended opposition of the one hundred and eighty-sixth article of the penal code of Chihuahua to the principles of the rights of individuals. Still, as the petition for indemnity for Cutting is also based upon other grounds, and it can be demonstrated that the argument brought forward in relation to the said article does not favor that petition, even supposing it to be opposed to international right, I am first going to deal with what concerns the claim of Cutting, and afterwards will engage in vindicating that part of Mexican legislation from the unjust reproach placed upon it. I will not do so with the great force and erudition displayed in the memorial or work prepared to combat that article, and which, by order of your Government, you were pleased to furnish me, as you say, to form a part of the papers in the case. I will not do so, because I consider it opportune, without great delay, to present a reply, and consequently have consumed but little time in the preparation of this memorial. Fortunately it is not necessary to enter into the details of this important study, and, even accepting almost all your propositions, there is yet an obvious lack of reason in the accusation made that Mexican legislation transgresses the rules to which all civilized nations should submit.

Reverting to the petition for indemnity for Cutting, I would say that its principal ground consists in the allegation that Mexican courts did not possess jurisdictional powers to try him lor the libel of which he was the author in the United States. Further on we will see that they did have that power in virtue of a legislative enactment of this country, which is not opposed to the unquestioned principles accepted by all nations and which can not, therefore, be objected to by any foreign government. Let us for a moment, however, admit that such jurisdiction did not cover the crime committed in a foreign land; it certainly did suffice to try the responsible party for the circulation of that libel had in Mexican territory, and for this cause also was Cutting tried, as appears in the sentence by Judge Zubia. The court, therefore, having jurisdiction in either event, the basis of the claim falls to earth; that is, the alleged lack of jurisdictional power, the leading point advanced.

It is true that in the instructions given to you it is stated that nowhere does it appear that the libel was circulated in Paso del Norte, nor does it appear that, in compliance with the court’s order referred to in the sentence, any copies thereof were found there. Still, naturally, this point is not strongly urged, for to deny a fact set down in the findings of a court sentence, and which was also manifestly public in that place, simply because the said copies were not found or are presumed not to have been found, would have been to carry zeal in argument too far.

If, on the other hand, the warrant for Cutting’s arrest specified merely the crime committed in Texas and not its continuation in Mexico, this is explained in the sentence, and implies nothing peculiar in the matter of judicial procedure in this country. I do not believe I should insist on answering these allegations, passing as they are, and which should not figure in a discussion like the present. It is undeniable that the court based its jurisdiction not merely upon the formation of the libel in Texas, but also upon the circulation of the same in Chihuahua; and if it be alleged that the first basis of the above hypothesis can not be sustained, the same can not be said of the second basis, whose existence is unquestioned save in the event of the doubt advanced, by no means admitted, that the printed copy began to circulate in Mexican territory.

In order to understand that, naturally, the libel must have, from the first, circulated in Paso del Norte, it is sufficient to note that that town and El Paso, Texas, are in close contact, forming almost one town, and that Cutting did not write his insults against Medina especially for the public of the latter place, who did not know the insulted party, but for the public of Paso del Norte, where he was well known among his countrymen.

The other bases of the claim for damages consist of a series of charges touching the treatment Cutting received during his prison term and at the time of his trial, charges which had been only partially advanced up to the present, and of which the Government of this Republic had not been informed. I can not refrain here from quoting, because my attention is drawn to it, the contents of your note bearing upon this point.

“Mr. Bayard,” says your note, “demanded the release of Cutting on the grounds—

• “First. That the judicial tribunals of Mexico were not competent, etc., relative to the point of jurisdiction, which we will hereafter discuss.
• “Second. Because the sanctions of justice which all civilized nations hold in common, had been violated by his treatment (that given to Cutting).

“Among those sanctions, it was stated,” so your copy gives it, “are the right of having the facts on which the charge of guilt was made examined by an impartial court, the explanation to the accused of these facts, the opportunity granted to him of counsel, such delay as is necessary to prepare his case, permission, in all cases not capital, to go at large on bail till trial, the due production, under oath, of all evidence prejudicing the accused, giving him the right to cross-examination, the right to produce his own evidence in exculpation, release even from temporary imprisonment in all cases where the charge is simply one of threatened breach of the peace, and when due security to keep the peace is tendered.”

This extract from your note, which appears to have been taken from another addressed by Mr. Bayard to Mr. Jackson, at that time United States minister in Mexico, and published subsequent to the occurrences, embraces statements whose application to the merits of the case is not understood, and various charges touching violation of rights concerning which the Mexican Government had not been advised, either to the effect that a remedy be applied or that the liberation of Cutting be insisted upon. In connection with this latter idea, if, as you say, the honorable Secretary of State demanded the release of the prisoner on the grounds set forth, I take it that they are the reasons which induced him to take the step he did, and not those advanced to this Government at the time that the request was formulated. For it is well known that no reasons were given, save those expressed by Mr. Jackson, in the short telegram in which his superior instructed him to demand the instant release of that citizen of the United States illegally imprisoned as the message read. The grounds for such a demand we have afterwards ascertained, inferring them from conversations had with our representative in Washington or from publications issued there for the information of the United States Congress.

Returning to the charges made up to the present of the supposed ill-treatment given to Cutting, I recall that naught was said to us about the same, save in a note addressed to me by the aforesaid Mr. Jackson on July 6, 1886. That note stated that Cutting was In jail, in a filthy and unwholesome place, where there were eight or ten other prisoners; that he was not allowed to give bail, and that the consul was not permitted to appear for him, in virtue of which, as his health was in jeopardy, Mr. Jackson asked that the situation of the prisoner be at once alleviated.

Answer was made to this to the effect that the Chihuahua government was instructed (as in effect it was) to administer prompt and due justice, and to apply remedial measures to the condition of the prisoner, granting him all the law would allow. Between what the minister of the United States at that time stated and what is now said there is some difference, for Mr. Jackson did not specify that means of defense were withheld from the claimant, Cutting, and that counsel was denied him when asked for; that the proofs against him were not explained, and that bail was refused him, all of which are now advanced in support of the claim for damages. This is an omission of transcendental importance, for if all ulterior recourses had not been resorted to then, nor had there been any complaint to the Government of the nation, the same could not be held responsible for the abuse committed, to the extent of demanding an indemnity for wrongs attributable to local authorities.

It will not be necessary, however, to give weight to this consideration, in view of the leading idea that all the charges concerning ill-treatment of the prisoner and the refusal to him of legal means of defense are wholly gratuitous and slanderous, the work of the mere imagination and malice of Cutting, who, from the start, inspired by the attitude of the consul, Brigham, refused every title of defense, alleging that he depended solely upon his consul and his Government. The said consul denied the possibility of any judicial procedure in Mexico for any act of any kind whatsoever committed in the United States; that is, every species of extraterritorial jurisdiction. And upon that blind belief, upon that error which went beyond even the principles set forth in Mr. Moore’s memorial, upon that confidence in his own judicial knowledge, without the necessary study of the legislation of this country, Mr. Brigham predicated his opposition to all procedure. He therefore, in the name of the Government of the United States, which he claimed to represent in Paso del Norte, entered his opposition, forgetting that the good offices permissible in a consul are far from being the functions of representatives and diplomats.

On his part, Cutting, finding himself supported, thus readily recognized at once the advantage he might secure in the way of a future claim for his supposed sufferings and for his voluntary or apparent lack of defense. Therefore, though at first heap-pointed Attorney José M. Barajas to defend him, afterwards, having consulted with the consul, he did not wish to avail himself of the services of that lawyer, nor would he select any other, and the judge found himself obliged to appoint one to defend the prisoner. Neither did he request liberty under bail, and even expressly refused it when it was offered to him by order of the superior court of Chihuahua, ever shutting himself up in the one invariable reply to every overture, “that he depended alone upon his consul, and would only accept absolute liberty.” He and his consul, actuated by different motives it appears, did not even wish to discuss the lack of jurisdiction which they alleged, as if even the act of refusing to recognize the jurisdiction of a court did not involve the employment of legal measures, the explanation of reasons to the accused, and the final sentence of the tribunal.

The fact that the conduct of both was as above indicated, and that the alleged lack of means of defense was the creation of Cutting’s malicious caprice, is demonstrated in the report accompanying this note, rendered by the judge or justice Castaneda. This report was not previously forwarded to your Government, because, as I have already said, the accusations now alleged in detail against the procedure of the said judge were not then thoroughly known, and besides the discussion in those days took a very different drift.

That report, drawn up in accordance with the facts as established in the court, contains a summary of all the occurrences, and gives the reasons more or less poorly expressed, but true at the core, that induced the judge to refuse to officially inform the consul touching the procedure in the case, as he seemed determined to know, as though he were some functionary who by international right or by some convention was authorized to interfere in judicial proceedings. The same document states that from the commencement Cutting was informed of the accusation and charges against him, who the accusing party was, and that he could designate counsel for the defense, which, as I before stated, he did at the time. It is also seen therein that the judge tried to and did place him in the most commodious (or if you please the least incommodious cell), which was the healthiest of all in the jail, foreseeing that being a foreigner he might make complaint touching this matter. It is also on record that the prisoner having once appealed to his consul, inspired by the latter, did not wish to answer any questions, or if he consented to answer would not place his signature thereto, claiming to be under the exclusive jurisdiction of his consul and of his Government in Washington, practically self extraterritorialized. It appears then, finally, that he not only did not request release under bail, but refused the same when it was offered to him.

With regard to the pretended cruelties inflicted upon Cutting in the jail, I should state that they were at the time satisfactorily denied by the report which I have just dealt with and in other ways. Among the latter is included the published telegram sent me on July 23, 1886, by Consul Escabor y Armendariz, which, after stating that Cutting had refused release under bail as decreed by the superior tribunal, goes on to say: “A window has been ordered to be opened in the room occupied by the prisoner, and that he be paid for living expenses 50 cents a day in place of the 10 cents allotted to the other prisoners.” The facts witnessed by the consul himself, whose residence is in Paso del Norte and El Paso, prove that if any distinction at all was made between Cutting and the other prisoners it was in benefit of the former. Now, all that can be demanded of any country whatsoever is that it shall not in similar circumstances subject foreigners to greater inconveniences than the people of that country itself; nor may it be required to have for foreigners better prisons than for its own citizens or subjects.

Supposing there were specially improved prison quarters assigned to foreigners, many of them, especially men like Cutting, would find even these inconvenient and even dangerous to their health. A short time since a Mexican ex-army officer named Rafael Pinal was imprisoned in Laredo, Texas, and complaint was made to this department that he was shut up in a kind of an iron cage, cold and unhealthy, and that bad food was given to him. The facts were investigated, and it was ascertained that he was occupying the same jail with all the rest of the prisoners, and that the same food was imparted to all. Consequently the Mexican Government withdrew the complaint it had formulated to your Government at Washington, convinced that there was no reason for demanding special favors for foreigners.

I can not proceed without calling attention to two marked objections made by the Hon. Mr. Bayard against the sentence by Judge Zubia, which had decided the case. To that end I will translate the words relevant thereto from the instructions which you were pleased to communicate to me, in order that you may judge whether I give them their true meaning:

“It has been seen,” says the Secretary of State, “that article 186 of the Mexican penal code requires that the offenses included in the article must be also punishable in the place of their commission; and the proceedings before Judge Zubia, as set forth in his decision, show that the Texas penal code was introduced in the trial to prove that Mr. Cutting had committed the offense of libel in Texas. With this code before him Judge Zubia held that its provisions had been violated. Thus sitting as a Mexican magistrate, he did what no Texas judge could have done had Mr. Cutting been on trial in that State for the alleged offense against its laws.

“By the Texas code (sec. 2291) it is no offense to publish true statements of facts as to the qualification of any person for any occupation, profession, or trade.

“Nor is it shown that Judge Zubia even attempted to inquire as to the truth of Mr. Cutting’s alleged libelous statements.”

Such is the first objection to which I refer. I will here notice that the provision of the Texas code on which this is based is found, with some modification, in the code of Chihuahua and Mexico (article 613, sec. 2) as well as in various other penal codes. In short, the qualification, be it ever so unfavorable, made concerning the competency of any person for any occupation or trade does not, when based on fact, constitute an offense, at least according to Mexican legislation, when it is made from a sense of duty or in benefit of the public. If this had been the question, Judge Zubia would have had to investigate whether or no such circumstances combined in the manifest published against Medina by Cutting. But this was not the question; and, of a truth, at the time that the objection was formulated it seems that the injurious words of the latter against the former had been overlooked.

Here they are literally as their author published them:

“El Paso, Texas, June 18, 1886.

“In a late issue of El Centinela, published in Paso del Norte, Mexico (dijo Cutting? said Cutting), I made the assertion that Emigdio Medina was a fraud, and that the Spanish newspaper he proposed to issue in Paso del Norte was a scheme to swindle advertisers, etc. Now, I do hereby reiterate my original assertion that said Medina is a ‘fraud,’ and add ‘dead-beat’ to the same; also that his taking advantage of the Mexican law and forcing me to a ‘reconciliation’ was contemptible and cowardly, and in keeping with the odorous reputation of said Medina.” (Congressional Record, page 8401.)

Neither do the vulgar or slang expressions “a fraud” and a “dead-beat,” applied to any man, the second of which is clearly defined in Webster’s Dictionary, nor the calling of that man the originator of a scheme to swindle (autor de un proyecto para estafar), nor characterizing his reputation as odorous in the sense of bad smelling (mat oliente), constitute a qualification of unfitness or lack of competency for any occupation, but rather do they tend to wound his moral reputation independent of any profession or trade. The basis, therefore, of the argument against Judge Zubia falls to ground.

The other objection urged against his conduct is framed in these words:

“By the fundamental law of the State (Texas) no judge can convict any person of libel, for section 6, article 1, of the constitution of Texas provides that ‘in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.’

“These provisions renuer it wholly unwarrantable for any judge, domestic or foreign, alone to decide that a person has committed a libel under the law in Texas.”

This objection appears also to rest upon an oversight. The one hundred and eighty-sixth article of the Chihuahua code does not require that the law of the place in which a criminal act is committed shall be applicable, in point of procedure, or of the species of tribunal to be selected to pass upon the facts or the law itself, but merely requires that the said law shall be consulted to learn whether or no it designates any penalty for said criminal act; and that, when once put, into play, foreign legislation can not interfere with the jurisdiction of the courts of the country, save exclusively in the manner in which that legislation may be affected by the law of the land. As this point is sufficiently clear, there is no necessity for insisting upon it.

I now intend to reply to the second point of your note, which proposes that Mexico modify the one hundred and eighty-sixth article of the penal code of Chihuahua and other States, as the same is contrary, so it is alleged, to international right, and because thus will be removed obstacles which might disturb the good relations between the two countries. But prior to entering upon this question I should reassert the thesis I have sustained up to present, and which, in the name of the Mexican Government, I continue to sustain. That thesis embraces the proposition that extraterritorial jurisdiction, as set forth in the aforesaid article, for the trial of foreigners charged with offenses committed outside of the Republic against Mexicans, within the limitations therein specified, is by no means antagonistic to international law. I have not endeavored to prove, what need not of necessity be proved, that the interpretation or solution given to extraterritorial jurisdiction in that article is precisely the most correct of all interpretations idealized, nor that in its entirety it is in consonance with the meaning placed thereon by the majority of civilized nations. It suffices for my purpose that the article in question does not impugn the unquestioned and universally admitted principles recognized by the said nations; it suffices, therefore, in view thereof, that Mexico is not obliged to modify her legislation upon this disputed point.

When in July, 1886, the case of Cutting was under discussion it seemed to me that the theory advanced by the State Department in Washington was based solely upon common law, which teaches that all jurisdiction is purely territorial and in no case personal, either over the person of the offending or the offended party. I inferred the above from various reports and data furnished to me and from the general line of statements with which Mr. Bayard, in accord with Mr. Brigham, defined his own position in the documents published at that time (Report of the Department of State, Congress. Rec., p. 8400, and annex No. 1, p. 8401), In order to demonstrate that that doctrine, venerable though it might be, did not lie at the base of the mass or the multitude of known codes of legislation, and that even, occasionally, it was set aside in England as well as in the United States, nations boundi by common law, I made several quotations which I deemed pertinent, and sent to Mr. Romero a list of codes of various nations, nearly all in force, which had upheld extraterritorial jurisdiction as applied in certain cases to the trial of native citizens or subjects, and in other cases even to that of foreigners who, after the perpetration of those offenses, might happen to be found within the territory of the nation whose laws had been thus violated.

Nevertheless, in the words of the Secretary of State quoted by yourself, as well as in the report of Mr. Moore, delivered to me, I find the natural admission of jurisdiction over native citizens or subjects who commit an offense abroad against their own country, but that jurisdiction is there denied in the case of foreigners in similar circumstances, unless the latter commit certain offenses against the interested nation, such as an attempt against its autonomy or the counterfeiting of the coin of the realm or the paper of its banks. This, in effect, is what is met with in the majority of legislations in force; and as it is but the minority which extends that jurisdiction to embrace the punishment of offenses committed in foreign lands by a foreigner against private subjects of the offended country, as our one hundred and eighty-sixth article provides, the conclusion is arrived at that the said article is in opposition to international law, and therefore it is claimed that Mexico is bound to modify that article.

It will be hardly necessary to recall that international law, as binding upon all nations, includes but few principles upon which they unanimously agree, and that there are an infinite variety of doctrines which have been and will ever be discussed pending the final sanction placed thereon by civilized peoples. Meanwhile each nation is at liberty to select either extreme of interpretation offered in those doctrines or some common mean upon which their judgment may agree. No one denies that the individual legislation of each state does not establish any international obligations; and while the decision of that state upon any specific point tends to make apparent the existence of some right, generally observed among the nations, that right is not binding (except when the states interested in some manner recognize such obligation) save upon the states which have engaged to observe it. From the time of Grotius (De Jure Belli et Pacis, book 2, chap. 8, $ 2) these ideas have been admitted without controversy; and, in the course of this note, we will see that not even a declared mandate issuing from an express convention of almost every civilized power carries with it a force binding upon those who do not accept that convention, as the Government of the United States itself has testified with its acts.

The important point in our case is to know that the great majority of nations has recognized extraterritorial jurisdiction, it being a matter of free volition on the part of each nation to determine how far each may carry the idea, provided always that the extent of the scope thus allowed has not been specifically condemned by the generality of the other states as being contrary to the principles which should govern their mutual relations. I speak of specific condemnations and not of the adoption of other solutions or medium grounds assumed for seeming preference.

Now, the special jurisdiction to which I confine myself, i. e., that set forth in the one hundred and eighty-sixth article, to which I refer, with its concomitant limitations, has not up to the present suffered that universal condemnation, nor has it been thus stigmatized by any authority of acknowledged note, not even by those quoted by Mr. Moore, and to which, in your note, you call my attention.

In demonstration I will examine only six or seven of those authorities you quote, and in order to avoid diffusiveness, will but briefly touch upon the others, as that will suffice for my purpose.

Heffter is one of the first, and he says as follows: “Penal law is at once territorial and personal.” He explains when either character of penal law prevails, and adds that authors are far from agreeing upon what he prescribes touching the second (or personal) characteristic of that law. He then continues: “The majority of criminal codes go even further, and authorizes procedure against foreigners who have been guilty, outside of the territory of a country, of crimes attempted against the safety of the state and its fundamental institutions. Formerly the courts were admitted to be competent for the punishment of crimes which the interests of humanity considered punishable, in any place whatsoever that the same were perpetrated, provided the criminals had not been already tried. The spirit manifested in the framing of these provisions is highly commendable, specifying as they do that each state is under obligations to lend its contingent toward the suppression of crimes no matter where committed. Nevertheless, as long as penal enactments continue to present essential differences, their application to cases unborn under their sway will always meet with serious obstructions” (International law, public, § 36.) While Mr. Moore quotes a text somewhat different, taken from the fourth German edition, I quote from the fourth French edition, in accord with the seventh German, both prints of 1883, edited and commented by Geffcken.

What I have above quoted does not condemn the idea of extraterritoriality, in question, as being contrary to international right, but refers to obstacles that may hinder their application, in extenso, to all offenses, even those of foreigners against foreigners, without specifically mentioning the corrective tendencies of the article I now advocate and which tendencies I will consider later on. Heffter does not there touch upon the special question of offenses committed abroad by foreigners against natives of any country. On the other hand, in the fourth note of the quoted passage, Heffter says: “There exists among authorities always a wide difference of opinion on this thorny subject” (sur cette matière épineuse).

As we will see later on, Fiore does not regard this question as being authoritatively settled by international usage. He calls it a question of much controversy, and says that it involves serious problems. In the lengthy extract from his Droit International Privé, quoted in Mr. Moore’s memorial, Fiore confines himself merely to combating a doctrine of Pinheiro-Ferreira, which presents an exaggerated idea of the right of one country to adjudge and punish an offending foreigner committing such offense abroad. From his Droit Penal International, in which he dwells in detail on the question, I copy but the following: “We can not admit that doctrine” (of extraterritoriality based upon the right of protection), “for it does not seem to us that the extraterritoriality of penal law ought to depend on the quality of the person to the prejudice of whom the offense has been committed.”

It would consume much time to explain the system followed by Fiore. But, in order that it may be understood that the same does not antagonize or condemn the punishment of a foreigner where he offends a citizen or subject of one country in another country, it is only necessary to produce the following passage from the same work (§ 66): “We conclude by saying that in our judgment no difference should be made between a foreigner and a native in the exercise of jurisdiction, even in penal law.* * * We should, therefore, admit the right to punish every individual without distinction, be he foreigner or native, when he, by acts committed abroad, may have transgressed the laws that sustain our institutions, or may have violated the rights either of a state or those of the persons protected by our laws.” It is true that, in order to avoid certain difficulties, he afterwards limits that right of punishment to determined cases; hut that is because he considers that the process of extradition is thereby extended, and made binding in all possible contingencies, to a degree that the government of the offending party finds itself obliged to request or accept the delivery thereto for punishment of the offending party, a system as yet almost unknown in practice. He thus explains it at the close of Chapter III (No. 84), and in the second part of his work.

Respecting the other publicists cited by Mr. Moore, it can be affirmed, in view of what he quotes from them, that none of them are very pronounced in their manner of treatment of the case, except Bar, whose principal arguments we will discuss later on, excepting also the American writers Woolsey and Wharton, to whose shining theories I will allude at length.

Phillimore refers to what Felix remarks concerning the general provisions of positive legislation, and cites an opinion of Bartolus touching the process of law applicable to an offending foreigner in a foreign state. Wheaton, without ventilating the question under discussion, explains also (with requisite detail) the general procedure followed, and approves the same in a laconic manner.

Hall, as he is quoted in the memorial, says that “the theory of the nonterritoriality of crime is not unquestionably at present accepted either universally or so generally as to be in a sense authoritative,” by which, far from declaring it as condemned beyond question, he admits that the principle has many adherents and a respectable foundation; for, otherwise in claiming that it is in no sense authoritative, it would become what is styled in English a truism (una verdad evidente de sobra).

The quotation from Story, without committing itself to any specific opinion, explains the theory of common law, and concludes by alluding to the different doctrines of Hertius and of Voët. It says: “He, as well as some others of the foreign jurists, enters into elaborate discussions of the question, whether, if a foreign fugitive criminal is arrested in another country, he is to be punished according to the law of his domicile or according to the law of the place where the crime was Committed.” He adds: “If any nation should suffer its own courts to entertain jurisdiction of offenses committed by foreigners in foreign countries, the rule of Bartolus would seem to furnish the true answer: Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur.” With which, far from-declaring extraterritorial jurisdiction as being opposed to public rights, he supposes the possibility of applying that jurisdiction to all crimes committed abroad by foreigners, even those which do not attack the interests of the State, or of its citizens or subjects; and he is only of the opinion that in such cases the law loci commissi delicti should be applied according to the rule of Bartolus; that is, under the ordinances of the Prussian penal code.

Mr. Field, according to his own statement, confines himself to the proposal in the six hundred and forty-third article of the international code, which he designed, of the provisions taken from the French criminal code.

Pradier-Fodéré, in the extract quoted by Mr. Moore, merely gives some reasons in support of extraterritorial jurisdiction which we are now treating and before proceeding to set forth reasons opposed thereto, he says: “These observations are certainly entitled to weight, but they can not prevail against considerations which are not less weighty.” It is evident that a theory in the defense of which that writer finds weighty considerations has not by him been condemned as being opposed to recognized international law.

With respect to the distinguished American jurist, Theodore Woolsey, Mr. Moore can not, despite his able efforts, succeed in changing the sense of this passage: “From this exposition it is evident (1) that states are far from universally admitting the territoriality of crime. (2) That those who go farthest in carrying out this principle depart from it in some cases. To this we may add (3) that the principle is not founded on reason, and (4) that as intercourse grows closer in the world nations will the more readily aid general justice.” (Introduction to the Study of International Law, fourth edition, § 78.)

If President Woolsey elsewhere (§ 20a) criticises the tendency of punishing every offense committed outside of the bounds of the state in any case, even when it does not affect the interests of the state, as happens when the victim is a foreigner, that by no manner of means implies a modification of his former assertion, nor, much less, does it declare as contrary to international right the punishment under certain conditions of a foreigner who offends in a foreign country the citizens or subjects of a state and then goes to that state.

With regard to Dr. Francis Wharton, I am unable to comprehend why Mr. Moore cited that author in support of his pretension, unless it be because he wished him to appear in the defense of the Department of State, for the jurist bears the title and has exercised or discharged and now performs the functions of solicitor or legal adviser of the Department. Mr. Moore quotes from that distinguished author a certain passage taken from the work entitled “Conflict of Laws,” second edition of 1881. There the author, without questioning their exactitude, defines some difficulties which may beset the theory that a sovereign, by virtue of the right to protect his subjects, is at liberty to exercise jurisdictional powers in the punishment of any one who may offend his subjects abroad. No one can deny that penal jurisdiction, when it is illimitable (for instance in the case where the act is not punishable in the place of its commission), presents various objections, as are also suggested by the doctrine which upholds the absolute territoriality of punishment. Be that as it may, the passage quoted by no means bars the possibility that Dr. Wharton, before and after the year 1881, expressed the most decided and cogent reasons in favor of extraterritorial jurisdiction for the punishment of foreigners who offend the subjects or citizens of a state.

The proof is found in his nook, Treatise on Criminal Law, ninth edition, of 1885, in which, in a long foot-note to section 284, he says, as follows:

“The several theories of criminal jurisdiction may be classified as follows:

• “I. Subjective, or those based on the conditions of the offender.
  • “(1) Universality of jurisdiction, which assumes that every state has jurisdiction of all crimes against either itself or other states by all persons at all places. This theory has few advocates in England or the United States. It has, however, the high authority of Taney, Chief Justice, who said in Holmes vs. Jennison (14 Peters, 540, 568, 596), that the States of the Union may, if they think proper, in order to deter offenders from other countries from coming among them, make crimes committed elsewhere punishable in their courts, if the guilty paHy shall be found within their jurisdiction.”
  • Before following up the quotation from Dr. Wharton I should note that that theory he designates as universality of jurisdiction, and which is supported by the decision of 1.0 less a distinguished authority than Chief-Justice Taney, advances far beyond the limitations on which rest the foundations of the one hundred and eighty-sixth article, under discussion, which does not pretend to visit universal punishment upon offenses committed abroad, but simply and under certain conditions deals with those who may offend Mexicans.
  • In explanation of the theory of jurisdiction, which he calls subjective, Dr. Wharton continues:
  • “(2) Territorial jurisdiction, which assumes that each state has cognizance of all offenses when the offender at the time of the offense was on its territory, but that it has jurisdiction of no other offenses.”
  • This has been the prevalent English and American theory.
• “II. Objective (jurisdiction), which assumes that each state has jurisdiction of all offenses which assail its rights or the rights of its subjects, no matter where the offender was at the time of the commission of the offense.

“This view, which appears to be the one best calculated to reconcile our adjudications on the vexed question before us, I have discussed at some length in the Southern Law Review for December, 1878 (vol. 4, p. 676). From this article I condense the following:

“The real theory of jurisdiction, as it is called by its advocates, rests, as has been seen, on the objective rather than on the subjective side of crime. Jurisdiction is acquired not because the criminal was at the time of the crime within the territory of the offended sovereign, nor because he was at the time a subject of such sovereign, but because his offense was against the rights of that sovereign or of his subjects. We punish all who offend on our own soil because our duty is to attach to crime committed within our borders its retribution. But in addition to this, we must punish when we obtain control over the person of the offender, offenses committed abroad by either subject or foreigner against our own rights.”

This will suffice for the present; later on I will again employ trie opinions of Dr. Wharton in the defense of the real or objective phase of jurisdiction when I engage directly in the vindication of the disputed article and endeavor to demonstrate that it is based upon a respectable scientific theory. For the present I merely wished to prove that the distinguished jurist does not condemn the theory of which I speak as being contrary to the rights of man. How could he condemn that theory in any manner whatsoever when he defends it in such a masterly way, as is evident in his work above quoted?

None of the authorities you quote, nor any others acknowledged as such, nor even those who adopt, in a question so serious, a theory opposed to that held by Dr. Wharton, and the opinion, even more advanced, of Chief-Justice Taney, at all condemn the theory I advocate. The only one among the many cited by Mr. Moore who ventures to assume so much is Mr. Réquier, reporter of the court of cassation of France, who, in the case of Raymond Fornage, said in effect: “The law can not give to the French tribunals the power to judge foreigners for crimes or misdemeanors committed outside of the territory of France; that exorbitant jurisdiction would constitute a violation of international law,” etc. Such a radical opinion was not adopted by the said court, however much Mr. Moore may insinuate it. The court of cassation declared incompetent the tribunals of France, giving as a reason that the law of the land did not warrant them in trying the case, which would have sufficed to base the decision. But when, with greater detail, the court insisted that the right of punishment emanated from sovereignty which did not go beyond French territory, appearing thus to confirm the theories of its reporter (Réquier), those conclusions being unnecessary for the solution of that particular case, could well be styled obiter dicta, and therefore without force of application in that sentence. Be that as it may, neither in those conclusions, nor, much less, among the essential groundwork, or in the dispositive part of the sentence itself, is it declared that any opinion more favorable to extraterritorial jurisdiction than that of Mr. Réquier would be contrary to the rights of men. (See the text of the sentence in the Appendix of Mr. Moore’s Memorial.)

That court of cassation could not have declared anything else, in view of the fact that when appealed to by the (French) Government touching the question of jurisdiction, not as applicable to the law in force, but to the principles of public right for the modification of French legislation, in 1845 it delivered an opinion in the following decisive language: “It is true that the right to punish, in the name of French law, can nowhere be exercised save in France; what is an error is that the punishable act can not in any case be governed by this law.” This conclusively condemns the absolute territoriality of criminal jurisdiction, distinguishing between the right of a nation to punish crimes committed abroad and the moral or physical possibility of applying punishment while the offender is found within the territory of another state; a most important distinction is this, for, as one leading criminal jurist observes, the confusion of those two ideas produces in great part the unnatural adhesion of many to the territoriality of punishment. In this connection, and in order that it may be shown that the extension of the power to punish to the limits assigned in Mexican legislation has had, in France, the preponderance of support from acknowledged savants, before events of a political character or of a cast foreign to the judicial phases of the question rose to suffocate the opinions of the masters in jurisprudence, I will now quote some extracts from the eminent Swiss jurist, Mr. Charles Brocher. After using the foregoing decision of the court of cassation, he says: “Some twenty-four appellate courts and six faculties of law (in France) decided in a similar manner. A commission was charged in 1849 with the preparation of a new report, the propositions of which were adopted by the legislative institute in 1852. That report clothed the French sovereign in a general manner with the faculty to punish crimes committed abroad against a Frenchman, provided always that the offender should take refuge in the territory of France. As this proposition provoked claims on the part of England, the Government withdrew the bill before the senate could adopt it.” (Etude sur les conflits de législation en matière pénale. Revue de Droit International, Vol. 7.)

It is thus seen that, on that occasion, opinion in France was wholly favorable to an extension, beyond the limits authorized by its laws, of the jurisdiction called extraterritorial, and that the Government, solely for reasons foreign to the judicial phase of the question (as is established by other historic data), solely on account of considerations connected with its foreign policy, withdrew the proposed measure, thus leaving it unsanctioned as a law.

This evidences that the question is not finally settled in the French nation, even while its present legislation is limited to the punishment, in the case I refer to, of certain specified offenses. On the other hand, it is difficult to understand why so many distinguished jurists and magistrates of experience and learning should not only disagree in the matter to which I allude (which was possible), but should even adopt opinions opposed to the well-known principles of international law.

Let us now speak of other nations. The memorial of Mr. Moore gives great preference to the penal code of the German Empire, a code that restrained the legislation of various Germanic states in their favorable leanings towards extraterritorial jurisdiction. This induces me to make two brief observations. In the first place, scarcely had that code been sanctioned and put into practice throughout the entire empire by the law of May 15, 1872, before it became the object of many controversies, and attempts were made to modify it, and partial modifications were indeed made in 1876. Among the proposed amendments sought to be ingrafted on the measure was one which provided that foreigners who had committed offenses and crimes abroad against German subjects should be placed at the disposition of the tribunals of the Empire. “The Reichstag, it was said, did not believe that the time had come for recasting the difficult theory of the application of penal law, and only adopted those new measures the necessity of which was apparent under the circumstances.” (Annuaire de Législation Étrangére, 1877, p. 139.)

That is to say, that not even in Germany, under the present code, has opinion been modified in this respect, and the tendency still prevails to amplify its foreign criminal jurisdiction beyond its actual limits, perhaps beyond even the limits of Mexican legislation, which itself has some important curtailments. That is to say, that the theory of widest application of extraterritorial jurisdiction, and which appertained to the various German codes substituted by the code of the empire, has not as yet been extirpated from that nation as being opposed to international law, which is founded upon reason rather than upon written law.

Apropos of the German code, it will not be inopportune to quote here some opinions from an able study relative thereto published in a French review. After stating that said code declares the competency of the tribunals of the empire to try a mass of crimes committed by Germans outside of the bounds of their territory, it goes on to pay: “Foreigners, on the contrary, can not be prosecuted on account of the offenses they may commit abroad, save in the event of high treason against the German Empire or against any of its states, or for the crime of counterfeiting money.* * * There is, in this regard, in the penal code we are considering an omission, with the result that the interests of German subjects abroad are not sufficiently protected by German law, and that the author of the crime or offense committed abroad against those same interests may, provided he is not a German, find refuge in German territory, and can not there be prosecuted. * * * The protection which the state owes to all the members of the nation, either at home or abroad, will be incomplete if the laws of the land are impotent to strike within its own territory the foreigner who may, outside of its bounds, have committed an offense against a subject. The circumstance that said offending party may not be subject to the penal law of the state will produce disturbance and inquietude in society.” (Etude sur le Code Pénal d Ailemagne; Eevue de Droit Pratique, 1874.) These extracts convey an idea of the class of objections which, in the line of difficulties indicated, have been raised against the penal code of Germany.

With respect to Italy, it should be observed, first, that Mr. Moore, in the list of codes which he gives (page 87) takes it for granted that there is but one (of the year 1859) still in force, and substantially the same as the Austrian code. The fact is there are two codes still in force in that kingdom, that of Sardinia, of the year referred to, and that of Tuscany, which is observed in what was the grand duchy of that name. Under the latter code alike every subject or alien who offends abroad against a subject is punishable (Articles IV and V, § 2), moderating somewhat the penalty for an offense committed outside of Tuscany, and in such cases requiring that the offense be punishable in the place of its commission (Article IV, § 2, and Article VI). The texts of the works of Fiore, Nos. 210 and 211, may be consulted, and the coincidence of that European code with the Mexican will become apparent. I am not surprised that Mr. Moore should have made a mistake in this matter, for Fiore himself, in his General Résumé of Legislations (No. 193), says that, having consulted among other American codes for the Mexican code of 1872, he failed to discover therein any provision relative to offenses committed abroad; that is to say, he failed to find any such in the Chihuahua code, which embraces the one hundred and eighty-sixth article, so strongly combated to-day by reason of those provisions.

With respect to the new Italian penal code, not yet in force, whose first book was approved in 1876 by the Chamber of Deputies, I have on another occasion intimated that it contains provisions quite similar to those of the one hundred and eighty-sixth article of our code. And if the new Italian code has not as yet been adopted, it does not appear, as is given out, that it is because objections are made to the above-approved theory, but on account of other considerations, especially those touching capital punishment, which is opposed in Tuscany.

Not alone in that proposed code, but in the three distinct and well-studied codes which preceded it since their initiation in 1868, ultraterritorial jurisdiction, of which we now treat, had been established in the case of foreigners offending subjects abroad.

Fiore relates it thus: “As regards foreigners who may, beyond our frontiers, have committed an offense against one of our citizens, the four codes admitted the right to punish the guilty party in case he were found in our territory.” (Ibidem, No. 176.) This uniformity of opinion in four distinct codes clearly demonstrates what has been the dominant opinion in Italy touching the matter under treatment, even though that opinion has not up to the present been converted into a law.

Without pretending to summon in review all or even many of the European powers whose writers and jurists, if not actual legislations, carry the idea of territorial jurisdiction beyond the arbitrary bounds assigned thereto, I will speak briefly of Spain, to whose positive law Mr. Moore refers as restringent under the most generally accepted idea of that class of jurisdiction. Among the authorities who have designated what has been the legal acceptance of that jurisdiction in Spain I will first quote Riquelmfe, the foremost Spanish writer on international law: “In the second case thus he explains himself; that is to say, when a foreigner comes to reside in a country, after having committed an offense against that country or against one of its subjects, * * * the situation changes, because that foreigner has not trespassed upon the laws of the land being therein; he has done evil to the state or to its subjects or citizens, but not subsequent to the acquirement on his part of an obligation to respect that state, for this duty begins to operate at the time of the entrance of that foreigner in said State, and not before.”

“Still, despite the difference between this and the prior case, the opinion of the best jurists agrees that not only is the prosecution of the foreigner justifiable, but that there is even ground, in certain circumstances, to require the extradition of the criminal. This theory is based upon the unquestioned duty which impels every society to its own self-defense and to the prosecution of all who attack its existence, as well as the unavoidable obligations to protect its subjects. From these duties and obligations, which are the essence of laws, is derived the right to visit punishment upon all who make any attempt upon the safety of the state or of its subjects or citizens, and this guaranty of society would, in many cases, be rendered ineffectual if the territorial limitations of jurisdiction were so vigorously insisted upon as to preclude the chance of trying no one save he who might trespass upon the laws within the territory of the country in which such laws operate.” (Elements of Public International Law, by Don Antonio Riquelme, book 2, title 2, chapter 2.)

Senor Don Alejandro Grroizard, a distinguished legislator and diplomat, in his address on the occasion of his reception in the Academy of Moral and Political Science in Madrid, in the year 1885, employed this language: “If the nature of the offender is and should be the fountain from which extraterritoriality springs, the nature of the offended party should be likewise. In the former case the sanction embraces the guilty party.

* * * In the second case the nature of the offended party. The law makes its force felt upon the criminal as a consequence of the protection it offers everywhere to all who live under the shelter of its flag. The principle extends even to foreigners, for it can not be conceived that its protective law would permit those who had been guilty of an offense against a subject to come within its circle of action to offend it anew with their presence and their impunity.” This will suffice to show that the opinion of distinguished specialists in Spain is further advanced in the point of the extraterritoriality of criminal jurisdiction than the legislation there in force, and that, therefore, the question can not be considered as being definitely decided in the Spanish nation.

All of this, in my judgment, demonstrates that the problem concerning the limitations which that jurisdiction called by some quasi-territorial, that which is asserted in the said article 186, even in the nations whose legislation does not admit the possibility of such jurisdiction, or admits it only under certain conditions, can not be said to be settled in a final and conclusive manner to the extent that its solution may constitute an axiom of international law. Now, if it is not a universally-recognized axiom that every step taken beyond the limits assigned in this matter by the majority of legislations violates the rights of other people, I can not understand why a state which takes that step—above all if it be accompanied by other states—should be obliged to retrocede, and to confess, against its convictions, that it has erred in its march. If it were necessary that each and every law in debatable matters of international usage should be moulded in conformity with the legislation of the majority of other countries, the least progress would become impossible without holding a convention among the majority of the nations; a proceeding little less than impossible.

In final proof that the question of the jurisdictional limits of a country is far from being satisfactorily settled, on account of the sole fact that the majority of states does not concede thereto the scope allowed by Mexico, I will merely quote here some extracts from Fiore, an author whom I have thus repeatedly quoted because Mr. Moore has given him such preference, in view of the fact set forth in his memorial that Fiore recognizes the usual limits of express jurisdiction, even while enlarging, on the other hand, the sphere of extradition.

“The difference of opinions,” says that notable writer, “commences to be apparent when the attempt is made to decide in what sense penal law should be considered as exclusively territorial. Should it be admitted that every criminal act committed beyond the frontier may elude the touch of this law, or that the law is applicable to individuals who, after committing délits on a foreign soil, have entered and resided in the territory of that violated law?

“In the solution of this serious question there exist not only great differences of opinion among writers, but even among the systems of positive legislation. * * * The majority of writers are of the opinion that in principle the operation of penal law can not, in an absolute manner, be confined to the territorial limits of a state. * * * But when cases arise in which the extraterritorial authority of penal law should be admitted—that is, under the condition of the application of national law to offenses committed abroad—then the question presents real difficulties.

“We propose,” he continues, “to discuss this disputed point, and try to establish general principles which may serve as a restraint upon the extraterritorial authority of penal Jaw.” (Treatise on Penal International Law, Nos. 3 and 4.)

This statement of Fiore, in the work in which he asserts what the majority of established legislations admit, up to the present, shows that the writer intended to treat an open and pending question, and that this question upon which he wrote was not, as is pretended, defined as a law by all the nations.

That is also to be inferred from the statements made by Mr. Moore himself with respect to the proceedings of the Institute of International Law, when it discussed the matter of extraterritorial jurisdiction in the city of Brussels in 1879. The special jurisdiction styled quasi-territorial by Mr. Brocher, and which was under discussion, was severely argued, and was, as is stated, at that time defeated by a vote of 19 to 9. Yet, in spite of that vote, the question was deferred for future debate. The subsequent sessions of the institute were held in Munich in 1883; and though the question was again raised, and another vote taken thereon, the said vote as mentioned by Mr. Moore, and which did not directly affect the complicated theory upon which rests the one hundred and eighty-sixth article, was not considered as having concluded that most serious of controversies, which has caused conflicting opinions, as Paul Bernard says in his modern Treatise on Extradition, among jurists ever since the Middle Ages. It seems clear that the institute had not regarded as conclusive and final its decisions on that difficult issue; for among the questions it enumerates as pending study on its part are those related to the conflict of penal laws (Revue de Droit International, Volume XII, page 616) and that the subcommission which reported upon the matter at Munich had been converted into a permanent commission upon this question and the question of extradition. (The same, Volume XVIII, page 514.)

Now, then, if the question of jurisdiction discussed by us is universally considered as being very much in dispute; if, as the best authorities claim, it embraces weighty problems in arduous and difficult matters, how is it possible that the adoption of one of the many solutions advanced, even if that be a solution unsanctioned by a majority of positive legislations, should constitute a violation of international law in the rights of men?

On the other hand, those rights do not acknowledge as their fountain the legislations of few or of many countries. No publicist of note includes positive law among the primal principles of international law. Wheaton only includes among those original principles of international law, when speaking of the positive legislations, the laws of particular states which give rules to their cruisers and to their prize tribunals; while Ortolan (not the criminalist, but the author of “Diplomacy of the Sea”) expresses himself as follows:

“Frequently, in addition to the public treaties, and to the usage of nations, there is another fountain to which recourse should be had in order to complete an understanding of international usage. Such are the laws and ordinances issued by the government of each state for the modeling of the conduct to be observed by its citizens or subjects in certain stated cases, wherein the interests of that government can come into conflict with those of other nations. The rights of people are not derived from these ordinances and laws, but, on the contrary, they emanate essentially from the rights of the people, and should not be more than their mere application, but solely on that account they should be understood.” (Book I, chap. iv).

The legislation of various countries may furnish data to throw light on international right, but it is not legislation which can fix that usage and determine the obligatory character of international relations.

The best proof that the solution given to the matter under discussion by the majority of nations is not binding upon any one nation, is furnished by the very Government of the United States. It is well known that the Declaration of Paris, made in 1856, entirely abolishing privateering, had been signed not only by the seven powers which drafted the same but by others, forty in number, or nearly all the European powers (with the probable exception of only Spain), and by all the countries of America saving the United States and Mexico. Here we see a majority of civilized nations which exceeds the majority alleged in our discussion, and here also we find a matter of much more moment, while on the other hand the system of privateering met with the uniform disapproval of writers and philanthropists, among whom stood, foremost, Franklin, the negotiator in your country’s name of the first treaty condemnatory of that practice, celebrated with Prussia in 1785, and which, a few years later, was renewed, the stipulation to which I refer being then struck out. Nevertheless those considerations failed to induce either your Government or that of Mexico to hold themselves bound in virtue of international right to subscribe to the dictation of that majority. The fact is, a matter has been touched upon wherein while a certain rule of procedure has been adopted for their guidance by a large number of states, neither the nations forming that group nor all the publicists have declared that any other interpretation would be contrary to international law, as Dana observes (note to International Law of Wheaton, § 358); and thus the Declaration of Paris is not shown to be a rule of law binding upon every civilized country. On the contrary, any of the non-signers of the aforesaid declaration is free to settle the question in accordance with the notions it may entertain as to its own interests.

It does not therefore matter how many penal codes in force in other countries may have restrained extraterritorial jurisdiction to a greater extent than Mexico, nor how many have gone at least as far in that line as this Republic. That in truth does not matter; still I can not help remarking that Mr. Moore has underestimated the number, saying that only two countries, Russia and Greece, concur in the matter with the Mexican Republic.

The codes of those two countries take even more advanced ground than that of Chihuahua. The same is true of the Hungarian code, which differs from that of Austria. The Austrian code, solely when overtures for extradition are made and refused, punishes every foreigner who offends abroad. Sweden and Norway, in their two distinct codes, exceed the limits of the Mexican in the recognition of that right, though they suspend its exercise in each case, upon the will of the King, for while they do not pretend that the right emanates from the will of-the King, they presume the existence of that right, to be used under the peculiar circumstances favored by the sovereign.

There are, besides, in Europe other codes of wider application than that of Chihuahua. One of these is the Tuscany code of 1843, concerning whose provisions and present force in Italy we have already spoken, noting that, for the punishment of the act committed abroad, it requires a requisite similar to that of the Chihuahua code, i. e., that the act shall be also punishable in and by the law of the place where committed. Even without that condition, such acts are punishable according to the respective codes of the Swiss cantons of Freiburg (Article III, § C), and of Tessino (Article V). Enumerating the codes I have mentioned, I find there are nine now in force in Europe which go as far as Mexican legislation has ventured, if not further, on the point of jurisdiction over foreigners for acts committed abroad. We do not now speak of America, as we will, further on, touch upon its laws.

Demonstrated, as I understand it to be, that the one hundred and eighty-sixth article of the Chihuahua penal code does not antagonize international law, as binding upon all states, it would seem useless to enter into speculative considerations concerning the basis upon which it rests. Still, as Mr. Bayard’s instructions to yourself quoted to me and the printed memorial which accompanied them, contain several such considerations brought forward to attack that article, it will not appear strange that I should defend it on the same line. I will do so with all possible brevity and at least to defend the reputation of the jurists who compiled that code, and whose memory would be brightened rather than obscured by the examination of the matter.

It is often repeated that the jurisdiction of a country is an emanation from its sovereignty and that it never exceeds its frontiers. It can be granted that the jurisdiction of a state, either civil or criminal, has not other origin than the sovereignty of that state, and that the latter is territorial in the sense in which it can not indulge in the actual practice of any procedure save within its territorial limits; but that by no means implies on the part of that state a lack of the right to exercise jurisdictional power on a person who, while beyond its limits, offends that state or one of its citizens or subjects. The right which any state has to defend and vindicate its own subjects or citizens does not cease when they are temporarily under another jurisdiction. Then all that is lacking is a fitting or possible opportunity for the display of its jurisdictional power, which comes into play the moment the offender comes within the circle of operation of the nation which has been attacked, either as a whole or in the person of one of its individuals.

The distinguished criminalist, Ortolan, who deals with this question, deliberately discourses thus in his Elements of Penal Law: “In vain will the objection be raised that the exercise of the internal sovereignty of each country is bounded by its territorial limitations. It is not proposed, as we have just explained, to repair to the house of another to carry out an act of sovereignty; but it is proposed in our own house, upon our own territory, to exercise the right of punishment we enjoy” (No. 885). Says Carrara, another writer of note upon the matter: “It is enough to stretch the vision, without placing the hand upon the neighboring country.”

It does not appear logical to admit the right set forth in the majority of legislations of punishing the foreigner who, in a foreign land, has attacked the safety of a state or of its collective interests, and in such event to recognize extraterritorial jurisdiction as being based upon the right to defend itself which belongs to every state, and at the same time to deny that same jurisdiction, in proper circumstances, when it is based upon the right which also appertains to any nation to defend its citizens or subjects. It is even yet less logical to recognize the right, in similar circumstances, to impose punishment upon the foreigner who counterfeits the coin of the realm, or beyond the limits of the same counterfeits the paper of its banks; for in such cases the nation has not been attacked in its collective entity, but the rather have a number, of its members been injured. The jurisdiction of a country is not affected by a large, rather than small, ratio of persons injured; it springs beyond question from the inherent right to defend and vindicate many or even one of the individuals pertaining thereto. The legislators who limit the exercise of quasi-territorial or objective jurisdiction admit, for obvious reasons, that each state is free to appropriate the incontestable right of extending the scope of that jurisdiction. But that limitation arrays no proof against the existence of that jurisdiction within all reasonable bounds.

The origin of the right to punish has been the subject of diverse opinions, and a multitude of theories have been invented to explain it. Following the German authors, Dr. Wharton has divided them into two groups: On the one hand, the relative, which embrace the ideas of vengeance, of expediency, and of conventionality or social compact; upon the other hand, the absolute or abstract, based upon the innate idea of justice. Ortolan, with marked profoundness and inimitable clearness, demonstrates that each is incomplete by itself, and that in view of our double nature, spiritual and material, which requires at once the satisfaction of the moral sense inherent in every man, as well as of his desire to blend practical usefulness with his acts, the true theory, that upon which common sense is based, is that which assigns as the basis of punishment demanded by all society intrinsic justice combined with the good of society. This opinion, though differently expressed, is also that of the said American criminalist Wharton, and the no less estimable Professor Woolsey.

This opinion was also adopted by the commission charged in 1871 with the formation of the Mexican penal code, and it served them as a guide in their multiplex and important deliberations. Thus it declared in its preliminary prospectus, and invoking that theory the commission, without analyzing its application to any given case, created the provisions of the one hundred and eighty-sixth article, as is seen in the extract therefrom which I quoted in my note of August 12, 1886, to Mr. Romero. Said theory could be applied to the case very briefly, observing that if the act committed abroad by a foreigner is a violation of the moral law, malum per se, as it must be regularly if it is punishable alike by the legislation of the country in which the offense is committed and that of the state in which the delinquent takes refuge, intrinsic and inherent justice calls for the punishment of the offender in one country or the other, and if said act redounded to the injury of a native of the country of refuge, there appears also in such case the expediency of adjudging and trying him for all the utilitarian ends of punishment, there existing in the latter country the two elements under which the right to punish is unquestioned.

Says the criminalist Ortolan: “The greatest scruple which can remain in the mind when these problems arise against the application of the penal laws of one land to the acts committed in another, above all if the delinquent is a foreigner, is that oftentimes that foreigner might suffer punishment for the infraction of laws with which he was not familiar either in their text or their existence even, and that the axiom ‘nobody ought to be ignorant of the law,’ can not rationally be applied to such a case. But * * * [here the author refers to other explanations which he has given] the offending foreigner who commits a crime against a person of another nation may be ignorant of the precise provisions of the penal law of that nation; but he undoubtedly knows, by his conscience, that he is committing a criminal act and that he merits chastisement. In case of doubt, he could before acting inform himself touching the provisions of the law to which I allude, the same as though he were about to make some private contract or the purchase of real property in the country of that person; in which case he would be careful to inform himself of the law of the country of the other contracting party, the duties of the investor, and the necessary formula for the transmission of those effects or property. Furthermore, as he can not come within the circle of action of the law and of the repressive legislation of that state except when he enters it and is captured therein, he can, before joining to alarm that society and to expose himself in the territory of the country to which his victim belongs, inform himself touching the penalties applicable to himself for the act he has committed against one of the subjects or citizens of that state.” (Elements of Penal Law, by Ortolan; fifth edition, by Desjardins, professor of penal legislation of the faculty of Paris, year 1886, § 903.)

I have made this long quotation because I consider it pertinent to the defense in general of the one hundred and eighty-sixth article of the Chihuahua code. In addition, it should not be forgotten that this article contains a provision which makes even clearer the justice with which it sanctions the punishment of an offending foreigner who has injured a Mexican in a foreign land, namely, the requisite that the act for which he is judged shall be also punishable in the country of its commission. This gives an additional guaranty that no act committed will be punished in the case of one believed to be innocent. I say that this is an added guaranty, because treating of délits against private individuals, the legislation of civilized nations is generally agreed upon the acts that constitute the category of crime, as offsetting the délits which we could style as against public affairs, as is that of attack against the institutions of a state, and concerning which, however, extraterritoral jurisdiction is admitted, although there is not as much universal interest shown in its suppression.

Dr. Wharton expresses (ubi supra) ideas similar, or at least with an identical end, to those set forth by Ortolan, when he says: “Two objections, however, may be made to the real theory of jurisdiction. The first is that it renders foreigners liable for disobedience to a law with which they are unfamiliar. But if this objection is valid it would relieve foreigners intraterritorialiy as well as extraterritorially. If a foreigner can set up the defense of ignorance of our laws abroad he can set up the same defense on our shores. * * * But in point of fact, no such defense can be set up. * * * In other words, the presumption of knowledge of the unlawfulness of crime, mala per se, is not limited by state boundaries. The unlawfulness of such crimes is assumed wherever civilization exists.”

The Doctor then proceeds to bring out the second object of which I treat; and I am going to copy what he has to say thereon, for it is the answer to one of Mr. Bayard’s observations:

“Another and more serious objection [I quote his own words] is that the real theory assails the prerogative of foreign sovereignties. To this may be replied that the objection proves too much. If a foreign sovereign has exclusive jurisdiction over his own subjects, then we can not under any circumstances punish the subjects of a foreign sovereign. But this no one, even among the sturdiest advocates of the personal theory, pretends. It is conceded on all sides that the moment a foreigner sets foot on our shores we hold him liable to our penal system in all its details. Nor is this all. There is no civilized State that has not passed statutes making it a criminal offense, punishable in its courts, for foreigners, even in their own countries, to forge its securities.”

In this last Dr. Wharton has called attention to the inconsequence, I have styled illogical, of punishing certain crimes committed abroad by foreigners against the state or against many of its citizens or subjects, while it denied the right of prosecution when the injured parties were few or even one, as though law could vary because of the number of those in whose persons that law had been violated.

“We do not, it is true, attempt to arrest them in their own land,” adds the able Solicitor of the State Department; “we are restrained from making unconditional arrests by the countervailing principle of the inviolability of the soil of foreign States. But when such offenders come, voluntarily or involuntarily, within our borders we try them as justly subject to our laws on the ground that they have criminally assailed our rights.”

Finally, Dr. Wharton, in the place quoted, answers another difficulty which is urged in his country against objective jurisdiction, a difficulty that apparently originated the sixth amendment to the Constitution of the United States. Touching that point I have nothing to say. For even if, as is apparent, the objection is not well answered, even when it is absolutely unanswerable, it is clearly evident that the provision alike in the Constitution of the United States and of that of Mexico, if called on to speak touching this question, could not serve as a solution to any international issue or to any point relating to the principles of international law. The fundamental law of a land which authoritatively decides its domestic questions lacks authority to interfere with foreign affairs.

I will add, in conclusion, a very obvious reason in support of the right to punish the foreigner who, having offended one of our citizens abroad, afterwards comes within our territorial confines. “It is a received maxim of international law,” says Phillimore, “that the government of a state may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to remain in it.” (International Law, Vol. I, p. 233.) If, therefore, the state has the right to impose conditions upon the entrance of foreigners in its territory, one of those conditions could well be that, upon entering its bounds, the foreigner should be held responsible, under the legislation of the land, for the offenses he may have committed when abroad against the citizens or subjects of that state.

Still, I should repeat that, while I advance these considerations in favor of the solution placed upon the difficult problem of extraterritorial jurisprudence by the Mexican penal code, it is not because I find myself forced to do so in this present discussion. All that is now necessary to investigate is whether that solution, not being in conformity with what has been adopted in the majority of recognized legislations, constitutes a violation of international law. I have said enough already to demonstrate that this can not be maintained in the affirmative.

Another reason is also presented to urge Mexico to modify its legislation upon the point under discussion, and to conform it, according to the suggestions made, with the legislation in force in other nations. That reason is the advisability of fomenting good neighborhood and friendly relations with the United States, removing thus, it is stated, a constant menace to the continuance of a friendly understanding with that Republic. It is certain that if it were so, and (supposing such course entirely practicable) if circumstances did not interfere which would make that step not only wholly useless for the end sought, but even indecorous on the part of an independent state, the Mexican Government would hasten to approve such a proposal, for it greatly esteems and appreciates the importance of cultivating and strengthening those good relations. But it is scarcely to be believed that with such a concession the real and probably sole cause of menace to the harmony of the two nations would disappear; that is, the spirit of adventure and speculation characteristic of certain men like Cutting, who are not wanting in your country, while in our country abound several bad elements easily operated upon by those Americans, happily few in number, whose dream is one of acquisitions in any manner whatsoever at the expense of a neighboring and comparatively weak nation.

A triumph won after an outcry by such persons, far from satisfying them and restraining them from future like attempts, would but serve to spur them on, and stimulate their appetite for notoriety and for greed secured by means of claims, if not by filibustering schemes. I am referring to both petitions in your note, for they are de facto and essentially claims for the indemnification of Cutting and for the modification in future of that legislation which prevents him from injuring a Mexican with impunity within the territorial limits of both countries.

Another of the effects which would result from the indemnification of Cutting, or the repeal of the laws which, as affecting his case, have been stigmatized as being contrary to international usage, would be to wound deeply the patriotic sentiment of Mexicans, who, in general, while they could not comprehend the technical reasons alleged, have understood and felt the force of the hurtful statements made against their country in connection with that unfortunate incident.

It is not, in our judgment, a menace to the friendly relations between the two Republics that our legislation, or rather that of Chihuahua, should punish real delinquents who may have offended foreigners in the United States the same as though they had offended in any other foreign country. The masses of the people in either country do not understand the technical questions springing from jurisdiction, and appear even to disdain such arguments, which are raised by persons presumed to be Well informed, or who are imprudent, like Consul Brigham. He it was who, possibly without knowing it, roused among the Texans those elements of disorder and disquietude which, taking Cutting for a pretext, came to the surface. I refer especially to the scandalous meeting against Mexico held then in El Paso, and to the consequent provocations against this Republic which appeared in a few of the American papers.

If that mass meeting did evince the danger that beset the friendly relations of the two countries through the procedure of the said consul, the other meeting, held immediately after and in the same place by the better class of the people, evinced, no less than did the general tone of the press of the United States on such an occasion of note, that the good sense of the American people (at least so we understood) was not swayed by mere jurisdictional questions the application of which might tend to leave unpunished certain offenses or serve as a pretext to the claims of those who consider themselves unjustly injured.

In our opinion the best indication that the people of the United States would not object to the further continuance of the one hundred and eighty-sixth article of the Chihuahua penal code, nor even to the application anew thereof in the event of a similar occurrence in the United States, especially as it has only been applied to an American once in the course of many years—the best proof, I repeat, is furnished by an occurrence which came about a few months after the imprisonment of Cutting. A person in El Paso, Texas, libeled in the press a Mexican of Paso del Norte, where, like Cutting, he was at once imprisoned. There was but one difference between the two cases; that is, that the libeler was a Spaniards, not an American, a circumstance that should not have operated as a waiver of protest against the jurisdiction thus exercised, for, under the territorial theory of punishment, he should have been submitted to the tribunals of El Paso. Nevertheless, in all that town not a voice was raised to ask for his return; and the Chamber of Commerce, composed of the most honorable citizens, held an extra session, to which the Mexican consul was courteously admitted, to deliberate as to the best method of concerted action on the part of the people of the two towns to repress the action of libelers, whose attempts to wantonly insult the most respectable people of either place were greatly facilitated by the contiguity of those cities. The report accompanying this note, with the inclosed clipping from El Paso Times, sent forward by Consul Escabar y Armendariz, reveal the spirit of the gathering, by no means hostile to Mexico, for the renewed application of the one hundred and eighty-sixth article, but the rather favoring its provisions.

With the purpose of persuading this Government to modify, in the point of extraterritorial jurisdiction, the legislation in force in Chihuahua and in the greater part of this Republic, you were pleased in your said note, and acting under Mr. Bayard’s instructions, to recommend Mexico to follow two examples therein cited as very opportune.

The first example is offered in the McLeod case, which occurred in 1842, in which, as you express it, in reply to the demand of the British Government for the release of the prisoner, who was in the custody of the authorities of the State of New York, the United States Government was obliged to refuse, on the ground that the Federal authorities had no right to interfere, and then Congress amended the law regulating the issuance of writs of habeas corpus, so as to enable the Executive to fulfill its international obligations. In that case, you say, the reply of the American Government was not dissimilar from that made by the Mexican Government to the demand for the release of Cutting; “but,” you then add, “the United States made all haste to conform its municipal laws to its international obligations.”

As is deduced from the foregoing, what the United States then did was not to change its municipal provisions in conformity with its international obligation; but, allow me to say, simply to modify its legislation so as to permit the Federal authorities to interfere in cases originating in the several States and which might, with or without reason, give rise to an international dispute. In that respect your recommendation might be heeded. We having imitated your form of govermnent there is nothing more natural than that we should avail ourselves of analogous measures to avoid the annoyances whereby State officials, by means of their acts, may compromise the responsibility of the nation in the matter of its foreign relations intrusted to the General Government; the latter, in such an emergency, being wholly unable to avoid the trouble. Fortunately the authorities of Chihuahua in no way compromised the federal authorities in the proceedings against Cutting, for their conduct throughout was prudent and strictly legal. But as that may not occur in other cases or in other States of the Union, and as the Government of Mexico should have the faculty to interfere therein with due opportunity, it has, for some time past, fixed its attention upon that matter, and will endeavor to meet that necessity in as far as the constitution of” this Republic will permit.

The second example you cite to me is that of France, in the case to which I had occasion in this note to refer, when the Government of that nation respected the wishes of the Government of England, withdrawing from its corps legislatif a projet de lot which established jurisdiction over offences committed by foreigners against Frenchmen outside of France. We are informed that, in following this notable example we would be taking a “highly honorable” step.

Setting to one side the difficulty attending independent States in any attempt to change their laws in their domestic bearing, great differences at once become evident between the cases of France and of Mexico. The Government of Great Britain requested that of France not to allow the approval of a projet de loi, which up to that time had been voted upon by only one house of the legislative assembly. In Mexico it would be necessary to derogate a legislation or rather various legislations in force for several years past. Again, the reasons of international polity which, it appears, surrounded the deliberations of an important convention for the extradition of criminals, being then negotiated, do not certainly obtain at present among us, nor are the precedents of the petition made by the British Government identical with those of this case.

But there is beyond all this a most marked difference between the circumstances in Great Britain and those in the United States. The former requested the French nation to refrain from the enactment of a principle in legislation not to be found in the British code of laws, at least in a very declared manner, nor in any codes in force throughout its different possessions. Consequently Great Britain made an overture of reciprocity and offered an example to follow. The same does not occur when the United States asks Mexico to modify its legislation by eliminating the principle under consideration, because that principle is found to be in force in part of the American Union. Of a truth it is difficult to understand why Mr. Moore, in the careful examination of all, or nearly all, the legislations of the world, without excepting in America even that of small States like Costa Rica, should have overlooked the legislation so palpable and of such decided importance in his own country; that is, in the State of New York, which, in the neighboring Republic, with legitimate pride, is styled the Empire State.

Well, in the penal code in force in New York, sanctioned since 1881, and the work, as I have understood, of very distinguished jurists, I find the following, which I copy:

“§ 676. A person who commits any act without this State which affects persons or property within this State, or the public health, morals, or decency of this State, and which, if committed within this State, would be a crime, is punishable as if the act were committed within this State.”

There are other paragraphs or articles of the same code which accord with this; but it is useless to cite them, as it is also useless to ascertain whether any other State or Territory of that Republic recognizes, in its legislation, in such a decided manner, extraterritorial jurisdiction over the acts of persons, without any distinction whatever, be they subjects or aliens, against persons or interests of the State. My purpose is served by quoting from the code of but one of those political entities, especially as it is one of the foremost in point of power, population, and wealth.

That code, in the provision cited, establishes the penal jurisdiction of New York over acts committed outside of its bounds by any person whatsoever, even an alien, to a greater extent than that of Chihuahua, for it requires that the act itself shall constitute a crime (delito), which, according to that same code, embraces every illegal and punishable act, even simple fault or misdemeanor, while the Chihuahua code provides that the act of a foreigner shall at least be liable to arresto mayor (detention from one to eleven months). Neither does the New York code, as does that of Chihuahua, require that the legislation of the country in which the offense is committed shall designate thereto a penalty. On the contrary, in section 678 it specifies that that is neither a requisite nor an obstacle to the punishment of an act. It says: “An act or omission declared punishable by this code is not less so because it is also punishable under the Jaws of another State, Government, or country, unless the contrary is expressly declared in this code.” Neither does it take into account as an exemption from punishment the circumstance that the said act may have been pardoned or punished in the place of its commission.

It can not be alleged that the provision previously cited limits the punishment of the foreigner to cases wherein he may offend against a New Yorker within the limits of his own State, taking as a basis that the code provision speaks of acts which affect person or property within the State; for, even if the offended party happens at the time of the offense to be outside, his family or his acquaintances would be inside the State and would be affected by the scandal or consequences of the offense. Be that as it may, and even supposing that limitation to be allowed in New York, it could not be argued in the case of Cutting, for in that case Medina, the offended party, was in Mexican territory at the time of the commission of the crime or délit.

The penal code of Texas also has the following provision:

“Article 454. Persons out of this State may commit and be liable to indictment and conviction for committing any of the offenses hereinbefore enumerated (forgery of land titles and other documents), which do not in their commission necessarily require a personal presence in this State, the object of this act being to reach and punish all persons offending against its provisions, whether within or without the State.”

This provision clearly establishes the right to punish every person, even an alien, who commits abroad certain offenses, rather than all offenses against the State or its citizens or subjects, as does the New York code. It is noteworthy that Mr. Moore should also overlook the legislation of Texas, when this was the State in which the Cutting incident, the subject of this study, occurred.

In view of these considerations, we can not recognize the right of the United States of America to declare the one hundred and eighty-sixth article of the Chihuahua penal code contrary to international law, and to base thereon a claim for damages in favor of an American, nor yet to request that the article in question be modified, when the codes of one or more integral parts of that Republic contain other provisions analogous thereto, if not even more advanced in their application of the disputed principle. Why should the Mexican codes and not that of New York be modified, when that of the latter State contains the defect alleged against the Mexican codes?

The first condition to an honorable agreement between two independent nations is that there may be perfect reciprocity. No friendly state will insist upon such a proposal, nor will it be admitted by another save at the cost of its national dignity.

I am going to close this long note, which has been insensibly lengthened and drawn out by reason of my desire to treat succinctly upon various points of the printed report to which you refer. In this note I believe I have demonstrated—

• First That Cutting did not suffer ill treatment, nor was he the victim of illegal procedure, and that even his apparent lack of defense was due to his own refusal of counsel for defense, of his own rejection of liberty under bail or any other legal recourse; for at all times he simply insisted that he relied alone upon his consul and his Government.
• Second. That, therefore, there is no reason of that kind why Cutting should be indemnified.
• Third. That neither can the complaint stand that a law antagonistic to international rights of individuals was applied to him—

  A Because he was tried not merely for an offense committed in a foreign country, but on account of the continuation or repetition thereof in Mexican territory; and

  B Because the one hundred and eighty-sixth article of the penal code of Chihuahua does not contain the defect attributed thereto.

• Fourth. The simple fact that the aforesaid article carries the idea of extraterritorial jurisdiction, as applied to foreigners, beyond the limits of the legislation of the majority of other countries, does not prove the same to be opposed to the recognized rights of individuals.
• Fifth. International usage confines itself to the establishment of general principles, and when controversy arises regarding the application to be made of any part of those principles, any interpretation, even that rendered by a minority of the States, is a legitimate manifestation of the sovereignty of those States.
• Sixth. This occurs in the case of the so-called objective or quasi-territorial jurisdiction; that is, that which is applicable to a foreigner abroad when offending a citizen of the complaining state; a question which, according to all acknowledged authorities, far from being settled, is one of those undecided problems presenting greatest difficulties to the legislator and to legal science.
• Seventh. Meanwhile, that jurisdiction, admitted as it is in the majority of recognized legislations over cases in which the foreigner has attacked the safety of a state, or to the detriment of many of its citizens or subjects has counterfeited the coin of the realm or the paper of its banks, can with equal reason embrace such cases wherein the damage falls upon a few, or even upon one, of the citizens of the complaining state.
• Eighth. The right which every nation has to impose rational conditions upon the entry of foreigners upon its own territory conveys with it the right within the limits of its legislation, to hold such foreigners responsible for acts they may commit abroad against that nation or against any of its citizens or subjects.
• Ninth. The United States can not request Mexico to modify her legislation in this respect, even supposing that legislation to contain the alleged defect, for the United States themselves in one or more of their territorial entities hold and follow substantially the same legislation.

Before concluding I take pleasure in stating that I regard the sincerity of the protests of friendship and consideration towards Mexico in which your note abounds. Sincere are also the friendly evidences upon our part, as well as being based upon the conviction of mutual dependence, and upon the sympathy we hold towards the Government and the country you represent. The extract you quote from a message of President Cleveland when speaking of this country is very significant: “Nature,” he said, “has made us irrevocably neighbors, and wisdom and kind feeling should make us friends.” Nothing is more certain; nothing is more happily expressed. Nothing, on the other hand, is of clearer application to every discussion in which, for secondary causes, amicable relations are endangered or the harmony between the two nations is threatened than that friendly sentiment which day by day is developed with the facility of communications, with the increase in traffic, and with the closer contact between the two nations secured through mutually agreeable intercourse, which tends to dissipate deep-seated prejudices and to strengthen the esteem for each. All these beneficial influences are in great risk of disappearing through mere questions of jurisprudence, in our opinion of more theoretical than practical interest, unless to a person who seems to have tried to make his name hated by the people of Mexico, without gaining thereby any enviable reputation in his own country. Be that all as it may, the Mexican Government in this question, as well as in any other case, is resolved, in order to maintain its friendship with the United States, to sacrifice everything save that which affects its national honor or the important interests thereto commended.

I reiterate, etc.,

Igno. Mabiscal.

[Inclosure 2 in No. 306.]

Mr. Maceyra to Mr. Mariscal .

mexican republic.

Government of the State of Chihuahua, second section, bureau of justice. No. 1383.

The president of the supreme tribunal of justice, in a communication, No. 741, of this date, informs this Government:

The supreme tribunal of justice, over which I have the honor to preside, having perused the report and other papers furnished by the second alcalde of Bravos in regard to the imprisonment of Mr. A. K. Cutting, has to-day decreed what I proceed to copy:

“While reserving the right to take fitting action hereafter, we order that a copy of the report furnished by the second alcalde of Paso del Norte be at once forwarded to the executive of the State, in order that the latter, if he see fit, may transmit the same to the foreign relations department.

“I have the honor of communicating this to you for your knowledge and for the effects set forth in the said decree, and I inclose in five sheets the copy in question.”

I have the honor of inserting the above decree for your knowledge, and I inclose the copy alluded to.

Liberty and constitution.

Chihuahua, July 23, 1886.

Felix Franco. Maceyra.

[Inclosure 3 in No. 306.]

Report of Judge Castaneda.

republic of mexico.

Supreme tribunal of justice of the State of Chihuahua. A seal which reads: Second court of the Bravos canton. Citizen minister of the supreme tribunal of justice of the State.

The undersigned, second minor judge of this town, in compliance with instructions from your superior court given in a decree issued in consequence of a communication from the governing powers of the State, dated the 12th inst., and containing a note from the secretary of state and the foreign relations department, renders the following report:

Mr. A. K. Cutting, the person to whom the said communication refers, has been accused before this court by Mr. Emigdio Medina, on the 21st day of June last, of the crime of libel; the said Medina presenting a certificate in due form showing that he had endeavored to effect a reconciliation before the same court in the same matter, and presenting also proof of the offense, which was added to the documents in the case, and which was a paragraph published in the El Paso Sunday Herald. The article in question is published in Spanish and English, and reads thus:

El Paso, Texas, June 16, 1886.

To Emigdio Medina, of Paso del Norte:

In a late issue of El Centinela, published in Paso del Norte, I made the assertion that Emigdio Medina was a fraud, and that the Spanish newspaper he proposed to issue in Paso del Norte was a scheme to swindle advertisers; on which account I was taken before a Mexican judge for a reconciliation, I consenting to the same on account of mi ignorance of the laws of that country.

Now, I do hereby reiterate my original assertion that said Medina is a fraud and swindler.

The fact of my being taken before a court for a reconciliation was a contemptible and cowardly act, and in keeping with the odorous reputation of the said Emigdio Medina.

And should said Medina desire American satisfaction for these lines, let him call of me where and when he chooses and I shall be ready to answer him.

A. K. Cutting.

In view of the accusation and the article referred to, an order was issued, on the 21st inst., for the arrest of A. K. Cutting, and on the 23d of the same month I caused him to appear before me. After the legal formalities, the libelous paragraph which he had published against Medina subsequently to the date of the reconciliation was presented and read to him by the official interpreter. He was asked if he was the author of the paragraph, and if it had been his intention to wound Medina’s reputation. The only answer I could obtain was the following: “I am not obliged to answer the question put to me touching this matter, seeing that all this took place in El Paso, Texas, and for any procedure I place myself beneath the flag of the American consul.”

He was asked if he had with him any copies of the paper in question with a view o distributing them, and he returned the same answer as to the first question.

On being again asked why he had violated the reconciliation which had been effected before the same court between himself and Mr. Medina, he requested permission to give no answer. His declaration was then read to him by the official interpreter, and he ratified the same and signed it along with the judge, the official interpreter, and wit nesses, Pedro Tellez and Pedro Y. Garcia.

On the same date he was declared formally imprisoned, and he was notified that he could name his counsel at once, and was informed who was the accusing party. He chose as his counsel citizen Licentiate José Maria Barajas, and he added that he would immediately communicate with his consul, and he signed this instrument along with the interpreter, the judge, and the said witnesses.

In consideration of his being a foreigner, this court succeeded in having him placed in one of the most commodious cells in the prison, clean and possessing the best hygienic arrangements, in order that its quality might not furnish a pretext for its being said that he was condemned to serve his term of imprisonment in the worst of dungeons.

On the 26th of the same month I was waited upon by the chancellor of the United States consul at this place, who stated that he came by order of the consul to request me, in the latter’s name, to give him some information in regard to the case of Mr. A. X. Cutting, and who further handed to me a note from the consul. I replied that I could give no information, as the law expressly forbade me, and I reiterated this in my reply to the consul’s note, which note was as follows:

Sir: I have the honor to officially communicate with you in regard to the arrest and imprisonment of A. K. Cutting, an American citizen, by your order.

I have been informed that A. K. Cutting was arrested, examined, and incarcerated for an offense (if offense at all) committed in the State of Texas, United States of America, which was the publication of a card in the El Paso (Texas) Herald.

It is scarcely necessary for me to call the attention of your honor to the fact that for an offense committed in the United States your court can not possibly have any jurisdiction. Therefore the arrest and detention of Mr. Cutting in jail is wholly unwarranted and oppressive, and in violation of one of the sacred principles of American liberty. This communication is for the purpose of making a formal demand upon your honor for the immediate release of Mr. Cutting, which I do in the name of the United States Government, which I have the honor to represent at this point.

Trusting that you will comply with my request and petition in his behalf and order his immediate release,

I am, &c.,

J. Harvey Brigham,
Consul.

On the 30th of the same month I returned the following answer:

“In reply to your note, dated the 26th inst, I have the honor to state to you that every functionary of the criminal bench is forbidden by an express law to give any information as to criminal suits pending in their courts to persons who have no legal right to intervene therein, and according to the doctrines of Peña y Pena, in his work entitled ‘Lessons in Forensic Practice,’ vol. 1, frac. 97, p. 507, consuls have neither criminal nor civil jurisdiction over their fellow-countrymen; I allude to the affair of Mr. Cutting.

“Therefore I am unable to order his release save in the form prescribed by the Taws of this country.

“I remain, etc.”

On the 5th inst. I ordered Cutting to be brought out of jail for the purpose of notifying him of an official sentence. When it was read to him by the official interpreter, he said that he heard it and that in this affair he had placed himself under the protection of the American consul. He refused to sign even what he had declared. The judge places this on record by means of judicial formalities, causing four witnesses, viz, Santas Bermudez, Pablo Lopez, Martin Gomez, and Antonio Alvarez, to be present and sign.

When the case was on the point of being transferred to the jurisdiction of the attorney-general, I ordered Cutting to be brought before me, on the 19th of this month, in order to inform him of the above-named resolution. He was informed, and then he was asked whether the article to which the attorney-general referred was his production and whether he ratified it.

While the interpreter was reading it to him he interrupted him, saying that he had already read it and that he would give no answer. He was asked if he would sign the notification, and he answered that he would sign nothing. I placed this on record by means of judicial formalities in the presence of four witnesses, who signed along with me and the official interpreter. These are the events such as they occurred, and as to the truth of what I affirm, viz, that Mr. Cutting never solicited release on bail, I adduce the testimony of the attorney-general which, in one serviceable leaf, I have the honor of inclosing, respectfully begging your supreme tribunal that my rights be protected against the author of the calumnious charges, as also against what Cutting affirms touching the interview he had with the American reporter; for as it coincides with the facts proven in his case, I have no doubt, though Cutting has not chosen to answer, that he is the author of that false machination.

Liberty and constitution.

Paso del Norte, July 21, 1886.

R. Castañeda (Flourish).

It is a copy taken from the original, which I authorize and sign in obedience to superior orders. Chihuahua, July twenty-third, eighteen hundred and eighty-six.

José M. Marquez,
Secretary.

[Inclosure 4 in No. 306.]

Mr. Escobar y Armendariz to Mr. Mariscal.

Mexican Consulate in El Paso, Texas,
El Paso, Texas , April 23, 1887.

No. 29.]

Sir: At the request of the jefe politico of Paso del Norte, I, along with some representative residents of that town, attended a meeting of the chamber of commerce of this city, which was fixed for and actually took place on the night of the 21st, to consider the conduct of Don Pedro G. Garcia, held to be the editor or publisher of the “Observador Fronterizo,” published here, and which has given rise to serious complaints on both sides of the river. The Mexican delegation was pleased to name me its president, and in this capacity it fell to my lot to explain to the board of trade, by which we were received most kindly, the causes of complaint against Mr. Garcia, who is now imprisoned at Paso del Norte under a charge preferred against him in this place. It was easy to show how damaging it was to both towns that there should be persons on both sides of the river who had no other employment than that of criticising, calumniating, and vilifying public functionaries and representative persons, regardless of the families whose peace was being disturbed by unwarranted attacks on private life; and how necessary it was, seeing that the authors of these attacks had turned them into a speculation as the sole means of giving interest to their publications, that both towns should co-operate to prosecute the guilty parties in legal form; and the important aid of the board of trade, there represented by numbers of its members, was requested, to that end. The invitation was greeted with enthusiasm, and the resolutions contained in the inclosed clipping from the Times of this city were at once submitted to the meeting.

At this moment Mr. Julian, the president of the board of trade, entered, along with a Mr. Gutierrez, the printer of Garcia’s libels and on whom Garcia has endeavored to shift the responsibility therefor. Gutierrez stated that Garcia, and not himself, was the author of all the articles denounced, and that he therefore delivered up the rough copies sent to him by Mr. Garcia from the jail of articles to be published in the 3rd number of a sheet styled “La Tempestad,” the same as had brought about Garcia’s imprisonment at Paso del Norte. Gutierrez said that he had decided not to publish the said number in view of the action taken against such clandestine publications by the board of trade. I will forward the said copies to you along with the declaration made by the printer Gutierrez before the judge of letters of Paso del Norte, before whom Garcia’s case is being tried.

I have the honor of communicating all this to you, also informing you that the charge against the same Garcia, also for libel, preferred by Mr. Ochoa before the courts of this town, continues in abeyance.

I reiterate, etc.,

J. Escobar y Armendariz.

[Inclosure 5 in No. 306.—Clipping from El Paso Times,]

board of trade.

A lively meeting, and many important matters discussed.

The meeting of the board of trade, Thursday night, was the first meeting of that body for several months. But the large number in attendance Thursday night, and the energy and harmony that were exhibited, made it clear that the organization is far from collapsing. President Julian presided, and J. A. Smith, of Smith & Thompson, was appointed secretary pro tem., Secretary Levy being absent.

A delegation of Mexican gentlemen, headed by Consul Escobar, appeared. President Julian explained that they sought the aid of the board of trade in suppressing such libelous articles as those for which Pedro G. Garcia was now in jail. Officials and private families in Paso del Norte had been made the subjects of scandalous articles which appeared in a paper printed in an El Paso newspaper office. The proprietor of said office had explained that the paper being in Spanish, and he not reading that language, he did not know the tenor of the articles till after the paper had been published.

Señor Escobar also addressed the meeting, after which the following resolutions were passed:

Resolved, That the Board of Trade of El Paso, Texas, assures the people of Paso del Norte, Mexico, that they will endeavor to not only stop, as far as in their power, the publication of such scandalous articles, hut will aid them in suppressing all such, and bringing to justice the perpetrators of such untimely assaults,

Resolved, That the board of trade denounce in the most severe terms the conduct of a person by the name of Pedro Garcia, a Spanish subject, in publishing and circulating slanderous articles reflecting upon the character and integrity of some of our most respectable neighbors in Paso del Norte.

One of the Mexican gentlemen present said that the person Jose Ruiz Gutierrez, who signed the Garcia libel, was “Francisco P.” Gutierrez, who was a fugitive from justice, and who stole the money from the bank at Paso del Norte. He was the Mexican employed at the Herald office in charge of the job department, and was subject to extradition.

After expressing their hearty thanks the delegation withdrew.