"I cannot help thinking that everybody knows there are many acts of a political character done without reason, done against all reason; but at the same time, one cannot look too hardly and weigh in golden scales the acts of men hot in their political excitement. We know that in heat and in heated blood men often do things which are against and contrary to reason; but none the less an act of this description may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over.

"For the reasons I have expressed, I am of opinion that this rule ought to be made absolute, and that the prisoner ought to be dis charged." 1

1 Political offenses :-" Most codes extend their definitions of treason to acts not really against one's country. They do not distinguish between acts against the Government and acts against the oppressions of the Government. The latter are virtues, yet have furnished more victims to the executioner than the former *** The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries. *** Treasons, then, taking the simulated with the real, are sufficiently punished by exile." (Jefferson to Carmichael and Short, 1792. 1 Am.

St. Pap. For. Rel., 258.)

In recent years there has been much discussion as to the nature of the crime committed in the assassination of the head of a government and of other public officials; whether it is to be put upon the footing of ordinary murder, or whether it shall be classed among those political offences which are exempt from extradition proceedings. Is it possible to make a distinction, as Mr. Jefferson suggests, between acts directed against tyranny, and those of a mere common-law character? Some such distinction has probably influenced statesmen in their dealings with the question of extradition. But as offences of this class have become more common and have invaded the dominions of the most liberal governments, public opinion would seem to be undergoing a change in regard to them.

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Soon after the assassination of President Garfield, the United States Government entered into two treaties of extradition-that with Belgium of 1882, and that with Luxembourg of 1883-in which it is stipulated that an attempt against the life of the head of a foreign government or against that of any member of his family, when such attempt comprises the act either of murder or assassination or of poisoning, shall not be considered a political offence or an act connected with such an offence." An extradition treaty between the United States and Russia, 1893, contains a similar clause.

By an agreement between the governments of Russia and Prussia in 1888, for the basis of an extradition convention, attempts against the life of the Emperor of Russia or the members of his family are to be considered as extraditable offences. And further, "the fact that the crime or offence, in respect whereof extradition is demanded, has been committed for a political object, shall in no case be a reason for refusing extradition." (Lowe's Life of Bismarck, II., 19.)

On this subject, see Moore's Extradition., I., 303–326.

SECTION 15.-JURISDICTION of OffenseS COMMITTED Abroad.

CUTTING'S CASE, 1886.

(Report on the Cutting Case, by J. B. Moore, 1887.)

May the courts of a State take jurisdiction in the case of offenses against its citizens, committed by foreigners in foreign countries?

A. K. Cutting, a citizen of the United States, was arrested in Paso del Norte, Mexico, on the 23d of June, 1886, for the publication in Texas of a libel against a Mexican citizen. Cutting had been for some time a resident of Paso del Norte, engaged in editing a newspaper called El Centinela, in a recent number of which he had reflected upon the character of one Medina, a Mexican, who proposed to start a rival newspaper in the same town. For this publication Cutting was, at the instance of Medina, arrested, brought before a local court, and required to sign a "reconciliation," which is in the nature of a compromise or settlement between the parties, in consideration of which the party who feels himself aggrieved abandons penal proceedings. Cutting then had the following notice inserted in the El Paso Herald, in Texas:

"To Emigdio Medina, of El Paso del Norte:

"El Paso, Texas, June 18th, 1886. "In a late issue of El Centinela, published in Paso del Norte, Mexico, I made the assertion that said 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. This morning said Medina took the matter to a Mexican court, and I was forced to sign a reconciliation.

"Now I do hereby reiterate my original assertion that said Emigdio 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 Emigdio Medina.

"And should said Medina desire American satisfaction for this reiteration, I will be pleased to grant him all he may desire, at any time, in any manner.

"A. K. CUTTING."

Article 186 of the Mexican Penal Code, under which Cutting was arrested, is as follows:

Penal offenses committed in a foreign country by a Mexican against Mexicans or foreigners, or by a foreigner against Mexicans, may be punished in the Republic (Mexico) and according to its laws, subject to the following conditions:

I. That the accused be in the Republic, whither he has come voluntarily or has been brought by extradition proceedings.

II. That, if the offended party be a foreigner, he shall have made proper legal complaint.

III. That the accused shall not have been definitively tried in the country where the offense was committed, or, if tried, that he shall not have been acquitted, included in an amnesty, or pardoned.

IV. That the breach of law of which he is accused shall have the character of a penal offense, both in the country in which it was committed and in the Republic.

V. That by the laws of the Republic the offense shall be subject to a severer penalty than that of "arresto mayor" (detention for from one to eleven months).

Notwithstanding the demand of the United States (July 19th) for the "instant release" of Cutting, "now unlawfully imprisoned at Paso del Norte," the court at that place proceeded to try Cutting; and on the 6th of August sentenced him to serve a year at hard labor and pay a fine of $600. On appeal to the supreme court of Chihuahua, that court on the 21st of August, fully approved the decision of the lower court; but the prisoner was released on the ground that the plaintiff having withdrawn from the prosecution of the suit, the principal motive of its continuance had ceased to exist, it appearing, moreover, that the withdrawal had "for its principal object the quieting of the alarm consequent upon his complaint."

The government of the United States then demanded an indemnity, for the imprisonment of Cutting; and further, requested of Mexico the abolishment or modification of the offensive article of her code. Mr. Bayard, Secretary of State, wrote: "This government is still compelled to deny, what it denied on the 19th of July, 1886, and what the Mexican government has since executively and judicially maintained, that a citizen of the United States can be held under the rules of International Law to answer in Mexico for an offense committed in the United States, simply because the object of that offense happened to be a citizen of Mexico. The government of Mexico has endeavored to sustain this pretension on two grounds: First that such a claim is justified by the rules of International Law and the positive legislation of various countries; and, secondly, on the ground

that such a claim being made in the legislation of Mexico, the question is one solely for the decision of the Mexican tribunals." Again, "there is no principle better settled than that the penal laws of a country have no extraterritorial force. Each may, it is true, provide for the punishment of its own citizens for acts committed by them outside of its territory; but this makes the penal law a personal statute, and while it may give rise to inconvenience and injustice in many cases, it is a matter in which no other government has the right to interfere. To say, however, that the penal laws of a country can bind foreigners and regulate their conduct, either in their own or any other foreign country, is to assert a jurisdiction over such countries, and to impair their independence. Such is the concensus of opinion of the leading authorities on International Law at the present day."1

1 Jurisdiction of extraterritorial offenses.-The position of the government of the United States in the Cutting case, that the Mexican law giving to its courts the jurisdiction of extraterritorial offenses, is contrary to custom and international law, and that the principles involved in it are practically obsolete in practice, would seem not to be borne out by facts. Aside from the question whether the commonlaw doctrine of territorial jurisdiction is the more expedient practical rule, it may at least be said that it is by no means so universally prevalent as to warrant the assertion that it has become a rule of international law. Not only are there many codes which go quite as far in the direction of extraterritorial jurisdiction as that of Mexico, but there is probably not a state which adheres strictly to the territorial theory. In the first place, practically, all states punish their own citizens for offenses of one kind or another committed in foreign countries. Even England punishes not only for treasonable acts, but also for bigamy, murder, and manslaughter committed abroad by her subjects. The laws of the United States, too, provide for the punishment of certain offenses committed abroad by their citizens. (Revised Statutes, § 5335; and see acts of Aug. 18, 1856, and Feb. 25, 1863).

Secondly, In regard to foreigners, there is a large number of codes which take jurisdiction of offenses against the state committed by them in foreign states; and a lesser number which go further, and extend their jurisdiction to offenses against individuals. Of this number, are Austria, Hungary, Italy, Norway, Sweden, Russia, Greece, and Brazil, as well as Mexico.

Again, there are many cases in the state courts of the United States, where acts, done by persons without the state but which take effect within the state, are held to be done by persons constructively within the state, and jurisdiction is assumed. Thus, if a man in one state fires a gun over the boundary line and kills a man in another state, he is triable in the latter state. (United States v. Davis, 2 Sumner, 482; State v. Wyckoff, 2 Vroom, N. J., 68; Com. v. Macloon, 101 Mass., 1). So, the author of a libel, uttered by him in one country, and published by others in another country, is triable in the latter country. (Com. v. Blanding, 3 Pickering (Mass.), 304; R. v. Johnson, 7 East., 65).

The Cutting case is similar to that of Com. v. Blanding, being a libel uttered in Texas, but being circulated and having its effect in Mexico; is the offense different in principle from that of wounding a man in one state by firing across the boundary from another state?

SECTION 16.-EXTRATERRITORIAL ACTS BY Order of The State.

MCLEOD'S CASE, 1837.

(Halleck's International Law, I., 429.)

An individual is not to be held personally responsible for acts done by him in a foreign State by order of his government.

"During the disturbances in Upper Canada, in the winter of 1837, a steamboat called the Caroline,' belonging to an American owner, had been actively engaged in conveying arms and stores from the American side of the river to the Canadian rebels, who were in possession of Navy Island, and had been boarded in the night time by a party of Canadian Royalists, while she was lying within the jurisdiction of the territory of New York, set on fire, and sent down the stream, when she was precipitated over the falls of Niagara and dashed to pieces. An American citizen, named Durfee, was killed in the affray, and several others wounded.

"In the month of January. 1841, a British subject domiciled in Canada, named Alexander McLeod, was suddenly arrested while engaged in some business, within the territory of the State of New York, and thrown into prison by the authorities, on the charge of having been concerned in the destruction of the 'Caroline' and the alleged murder of Durfee.

"McLeod was, in the month of May, removed by habeas corpus from Lockport to New York, in the custody of the sheriff of Niagara County. Previously to this, the following note, dated March 12, 1841, was sent by Mr. Fox to Mr. Webster, the new American Secretary of State :

"Her Majesty's Government have had under consideration the subject of the arrest and imprisonment of Alexander McLeod, on a pretended charge of arson and murder; and I am directed to make known to the Government of the United States, that the British Government entirely approved of the course pursued by him. I am

Among jurists there is a wide difference of opinion in regard to the merits of the two systems-the "territorial" and the "personal" theories of jurisdiction. (T. E. Holland Jurisprudence, 2d Ed., p. 318; F. Wharton: Philosophy of Criminal Law, p. 309, et seq.; L. Bar: Private International Law, Translation by G. R. Gillespie, p. 620 et seq.; Wharton's Conflict of Law, § 1810; "Case of A. K. Cutting, by the Minister of Foreign Relations of the Republic of Mexico," 1888.)