tain cases to try the case if the person of the offender is subject to their jurisdiction, and so can punish a subject after his return home, for a crime committed abroad. These states, therefore, while they will surrender foreign criminals who have escaped to their territory, hesitate, and often decline, to surrender their own subjects for crimes committed abroad.' 1 Lawrence, Int. Law, §§ 132, 133; I Twiss, §§ 240-242; Walker, Sci. Int. Law, pp. 232-238; Klüber, 8 66; Heffter, § 63. "Three causes have operated, during the present century, to diminish extra-territorial pretensions in criminal matters: (1) The growth of the idea of nationality and of equality; (2) the development and extension of commercial intercourse; (3) the more general recognition and performance, by independent states, of their rights and duties under international law. The first cause has operated to produce a clearer apprehension of the objects of national existence, and of the bounds of national authority; the second has rendered more apparent the necessity of personal immunity from vexatious and unjust prosecutions under foreign and unknown laws; the third has made governments more ready to abandon assumptions of authority which infringe the rights of other sovereign powers. The infliction of punishment involves an exercise of power, and power implies subjection. This principle holds good in public as well as in private affairs. The punishment by one state of the citizen of another state for an act for which he is solely answerable to the laws of the latter, or even for an act for which he was not answerable to the laws of the former, is a public wrong. For a nation to hold its penal laws to be binding on all persons within the territory of another state, is to assert a right of sovereignty over the latter, and to impair its independence. A state may, if it see fit, tie its criminal law about the neck of its citizen, and hold him answerable for its violation everywhere. But even this power of control has its limitations. For the citizen so bound is, nevertheless, not exempt from obedience to the law of the place where he may be, and it would be no defence to a charge of having violated it to say that the act complained of was required by the penal law of his own country. The local allegiance would be paramount; his double allegiance would be his misfortune, for relief from which he could appeal to the mercies of his own government alone. When a man in his own country violates its laws, he is answerable, for his misconduct, to those laws alone; and it is his right to be tried under them, and in accordance with the methods of procedure which they prescribe. To say that he may be answerable to another law, because the person he attacks is a foreigner, would, in principle, subject him in his own country to a dual, but to an indefinite, responsibility. Such a pretension is an assertion, not only of an imperium in imperio, but of imperia in imperio. It would expose citizens and all other persons in the United States to liability to as many penal systems as there happened to be nationalities represented in the foreign popula The Cutting Case. Although this case is, in strictness, an example of the interposition of a state to protect its citizens abroad, it illustrates, at the same time, an important difference which now exists, as to the right of a state to punish acts, in violation of its laws, committed not only beyond its boundaries, but within the territorial jurisdiction of another state. Cutting was an American citizen, and a resident of El Paso, in the State of Texas, where he was engaged in the publication of the Centinela, a weekly newspaper. In June, 1886, Cutting published an article defamatory of one Medina, a Mexican citizen. He afterward crossed the Rio Grande into Mexican territory, where he was arrested on a charge of criminal libel, in violation of paragraph 186 of the Mexican Penal Code, a statute which, under certain conditions, confers jurisdiction upon the criminal courts of that state to try offences against citizens of Mexico committed by foreigners in foreign territory. Mr. Cutting was brought before a local criminal court, and required to sign a "reconciliacion," an instrument peculiar to Mexican jurisprudence, which operated as a settlement between the parties, in consideration of which the aggrieved party abandoned further criminal proceedings. Cutting then returned to the United States, where he published a card in the Centinela, in which he reiterated his former charges, and added others, in which he characterized Medina's action as contemptible and cowardly. Returning to Mexican territory on June 23d, he was again arrested, presumably on the same charge. His trial, which resulted in a conviction, was completed on August 7th, and he was sentenced to imprisonment at hard labor for one year, in addition to which a fine of $600 was imposed, and, in default of payment, his confinement at hard labor was to continue for a further period of one hundred days. The case was carried, by way of appeal, to the Supreme Court of the State of Chihuahua, tion. Every fresh accession to that population would extend the operation, and potentially increase the variety of foreign penal systems in force in this country. The mere statement of such a proposition is a sufficient refutation of it."-Foreign Relations of the United States, 1887, pp. 839, 840. where the sentence of the lower court was affirmed, but the prisoner was released on the ground that the plaintiff had withdrawn from the prosecution of the suit. As the act of publication had taken place within the territorial jurisdiction of the United States, the American minister to Mexico was instructed, on July 19th, to demand the instant release of Mr. Cutting, upon the ground that the offence had been committed in a place beyond the jurisdiction of Mexico, and the assumption of the Mexican tribunal to punish a citizen of the United States for an offence against the law of Mexico, wholly committed and consummated in his own country, was an invasion of the sovereignty and independence of the United States. The Mexican Government contended that the act of its tribunal was justified by the rules of international law, and that the question of determining whether the case was triable in Mexico, or not, was one which was to be decided by the courts of that state. The Mexican minister does not seem to have relied, chiefly, if at all, upon the ground that the publication of the libel in Mexico would have operated to confer jurisdiction upon its courts to try the case, but rested his argument upon the grounds above stated. The correctness of the views advanced by the Mexican Foreign Office was denied by the United States, and its demand was persisted in. The case terminated with the release of Mr. Cutting under the decision rendered by the court of appeals. The affair illustrates the difference of view, in respect to the power to punish crime, which exists between states whose legal systems are based upon the Roman law, and those whose jurisprudence is derived from the common law; the view of the former being that a state has power to punish the offence, wherever committed, whenever the offender is found within its jurisdiction; the latter, on the other hand, regard jurisdiction to punish crime as strictly territorial in character, and that an offence can only be lawfully tried and punished in the territorial jurisdiction in which it was committed. The common law view of the matter is supported by the principles of international law, as those principles are now generally accepted and understood. If a state is sovereign and independent within its territorial limits-a doctrine that lies at the basis of the law of nations-the right to try and punish crimes, committed within its territory, is an essential attribute of sovereignty, and the attempt to try such offences in an alien jurisdiction is an invasion of such sovereignty to the extent of the jurisdiction exercised in the particular case.' As a result of increased international intercourse, and with the rapid extension of commerce which has taken place in recent times, each group of nations has found it necessary to modify, to some extent, its peculiar view of criminal jurisdiction. All modern nations punish the crime of piracy, wherever committed; and most of them punish their own subjects for engaging in the slave-trade. England and the United States punish many crimes committed by their subjects beyond their territorial jurisdiction, especially on the high seas. On the other hand, many Continental states find it no longer necessary to assert so extensive a jurisdiction, in criminal matters, as is warranted by their legal systems. Jurisdiction over many offences of small importance, amounting to misdemeanors at common law, is now generally abandoned by them, and crimes of a more serious character are triable only on complaint of the injured party, when both have come within their territorial jurisdiction. Most states, however, punish crimes against the state, such as treason, counterfeiting, etc., wherever committed, when the person of the criminal is found within their jurisdiction.' 1 For the correspondence in this case, see Foreign Relations of the United States, 1886, pp. 691-707; 1887, Ibid. pp. 751-867; 1888, Ibid. pp. 1113, 1189, 1199, 1201. For an exhaustive report on the questions of international law involved, see the Report on Extraterritorial Crime, by J. Bassett Moore, Assistant Secretary of State, For. Rel. of the U. S. 1887, pp. 757-867; see also vol. xx. Revue de Droit International, pp. 559-577; xxii. Ibid. pp. 234–250. The following summary of the practice of the principal states of the world, in respect to the punishment of offences committed abroad, is extracted from the report of Assistant Secretary Moore in the Cutting case: "Foreigners are punished who, outside of the national territory and jurisdiction, commit offences: "(1) Against the safety of the state; (a) By France, Germany, Austria, Hungary, Italy, Luxembourg, Extradition. The term extradition is applied to the legal process by which one sovereign state, in compliance with a formal demand, surrenders to another state, for trial, the person of a criminal who has sought refuge within its territory.' the Netherlands, Norway, Russia, Sweden, Greece, Brazil, Spain, Switzerland; (b) not punished by Denmark, Great Britain, Portugal. "(2) Counterfeiting seals of the state, national moneys having circulation, national papers or bank bills authorized by law; (a) Punished by France, Germany, Austria, Belgium, Hungary, Italy, Luxembourg, the Netherlands, Norway, Sweden, Greece, Brazil, Spain, Switzerland; (b) Not punished by Denmark, Great Britain, Portugal. "(3) Other offences: (a) General jurisdiction of offences committed abroad, by foreigners against subjects, is claimed by Greece and Russia; (b) Such offences are punished by Sweden and Norway, if the King orders the prosecution; (c) Crimes, but not delits, committed by foreigners in another state are punished by Austria, provided that (except in the case of crimes, specified under 1 and 2), an offer of surrender of the accused person has first been made to the state in which the crime has been committed, and has been refused by it; (d) criminal offences committed abroad by foreigners are punished by Hungary, if the minister of justice orders the prosecution, provided the act is punishable at the place of commission, that it has not ceased to be punishable there, and that the competent authority does not undertake to punish it; (e) criminal offences, committed by foreigners, against Italians in another state, are punished by Italy, but only when (except in the cases under I and 2) an offer of surrender of the person accused has been made to the state in which the crime was committed, and has been refused by it, unless the crime was committed within three miles of the frontier, or stolen property has been brought into the kingdom; (f) non-bailable offences, committed abroad by foreigners, are punished by Brazil, if the prosecution is authorized by the government, and the laws of the criminal's country punish foreigners in like cases; (g) criminal offences, committed outside of the state, by foreigners against citizens or subjects, are not punished, under any conditions, by France, Germany, Belgium, Denmark, Great Britain, Luxembourg, the Netherlands, Portugal, Spain, or Switzerland."a I Moore on Extradition, § 1; Spear, Ibid. pp. 70, 71; Heffter, § 63; Klüber, § 66; Bluntschli, §§ 394-401; Lawrence, Int. Law, § 132; Pomeroy, § 198; Vattel, liv. ii. chap. vi. §§ 75-77; Dana's Wheaton, § 181, note 73; Walker, Science of Int. Law, pp. 232-238. a Foreign Relations of the United States, 1887, pp. 757-867. In the case of the United States vs. Arjona, decided by the Supreme Court in 1886, it was held that the counterfeiting of foreign securities, whether national or corporate, which have been put out under the sanction of public authority at home, especially the counterfeiting of bank notes and bank bills, is an offence against the law of nations; and that, consequently, the Congress of the United States has authority, under its constitutional power to provide for the punishment of offences against the laws of nations, to enact laws to punish the foreign counterfeiting of foreign securities in the United States.-United States vs. Arjona, 120 U. S. 479. |