No. 785.
Mr. Bayard
to Mr. Bragg.
Washington, May 4, 1888.
Sir: I have to acknowledge the receipt of Mr. Connery’s dispatch of the 21st of February last, numbered 306, inclosing a translation of a note from Mr. Mariscal of the 10th of the same month, in relation to the case of A. K. Cutting.
It is regretted that the representations of this Government, especially in regard to their chief object—to secure the modification by Mexico of her claim of criminal jurisdiction over the territory of the United States—have not received more favorable consideration from Mr. Mariscal. In my instruction to Mr. Connery the question of compensation to Mr. Cutting was subordinated to that vastly more important issue, and was not, in view of his general course of conduct and of his early discharge by the supreme court of Chihuahua, intended to be bound up with it. Mr. Connery was instructed to say to the Mexican Government “not only that an indemnity should be paid to Mr. Cutting for his arrest and detention in Mexico on the charge of publishing a libel in the United States against a Mexican; but also in the interests of good neighborhood and future amity, that the statute proposing to confer such jurisdiction should, as containing a claim invasive of the independent sovereignty of a neighboring and friendly state, be repealed.”
I then proceeded to show that there were important precedents, in view of which it would be highly honorable to Mexico to make such modification of her law.
The question of pecuniary indemnity was not urged as a necessary incident or consequence thereof, nor was it deemed desirable that it should be suffered to interfere with the consideration of the more important question of jurisdiction by being presented in connection with it.
The consideration of Mr. Cutting’s personal merits or of the general features of his conduct can not be regarded as affecting in any way the essential principle of international right and independent sovereignty which his case involved, and which it is so obviously the interest of the United States and Mexico to have settled.
At the close of his note Mr. Mariscal sums up the results of his arguments in various propositions, of which the eighth is as follows:
The right which every nation has to impose national conditions upon the entry of foreigners upon its own territory conveys with it the right within the limits of legislation to hold such foreigners responsible for acts they may commit abroad against that nation, or against any of its citizens or subjects.
The fallacy of the last clause of the proposition can not be more clearly shown than by referring to that part of the same note in which Mr. Mariscal endeavors to show that Fiore, notwithstanding the express declarations quoted by this Department from his works, does not antagonize or condemn the punishment by a state of a foreigner when he offends one of its citizens in a foreign country. To prove this, Mr. Mariscal quotes from section 66 of Fiore’s “Droit Pénal International,” in which the learned author admits the right of the state “to punish every individual without distinction, be he foreigner or native, when he, by acts committed abroad, may have transgressed the laws that [Page 1190] sustain our institutions, or may have violated the rights either of a state or those of persons protected by our laws”
This passage, which Mr. Mariscal has quoted to sustain his contention, seems to me to be fatal to it. If it could be contended that a Mexican or any other foreigner is protected in the United States by the municipal law of his own country, then the passage quoted from Fiore might be held to contradict his explicit declaration that he can not admit the doctrine 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;
And his further declaration that he can not admit—
That a rule of action may he violated which was not obligatory in the place where the offense was committed.
But it can not be contended that foreigners are protected in the United States by their national laws. Fiore himself says that “no sovereign can exercise his repressive power on territory under the dominion of another sovereign.” (Droit Pénal International, Paris, 1880, p. 94.) Nor am I acquainted with the works of any author, ancient or modern, who holds an opposite opinion.
Hence, when Fiore limits penal jurisdiction to the punishment of infractions of the rights of a state or of persons protected by its laws, he clearly and unmistakably negatives the claim of extraterritorial jurisdiction, against which this Government protested in the case of Mr. Cutting. No sovereign state can admit that its citizens are subject in their own country to the control of a foreign municipal law. And so must every sovereign state equally repudiate the correlative proposition that foreigners within its territory are protected by the municipal law of their own country or countries against the acts of citizens of such state. Such a doctrine would carry the extraterritoriality of penal law even beyond the limits set in the conventions between Christian and non-Christian countries, under which the citizens of the former are exempt from the local law, and would produce a confusion and conflict of jurisdictions which could only lead to dangerous and frequent disputes. It is not denied that a state may impose rational conditions upon the entry of foreigners upon its own territory,” as Mr. Mariscal contends, but in the opinion of this Department no condition can be regarded as rational, or as consistent with those amicable relations which nations should seek to cultivate and foster, that derogates from the sovereignty and exclusive jurisdiction of foreign states over their own territory.
In view of these circumstances, it is hoped that the Government of Mexico will yet see its way to a modification of article 186.
In regard to Mr. Mariscal’s reference to the codes of New York and Texas, and his expression of surprise that they are not noticed in the report on extraterritorial crime, it should be observed that they are both discussed at page 25 of that document, and shown to rest, as to the provisions cited by Mr. Mariscal, on a principle precisely opposite to that which he has defended in article 186 of the Mexican penal code.
You are authorized to state the views herein expressed to Mr. Mariscal and to leave him a copy of this instruction should he desire it.
I am, etc.,