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EXTRATERRITORIAL CRIMINAL JURISDICTION AND ITS EFFECT
ON AMERICAN CITIZENS.
To the Mexican-Texan Cutting case (1886) the origin of this essay is due. It aims to lay, for the first time, a scientific foundation to “ Extraterritorial criminal jurisdiction.” I am not aware of any international law book that had tried to solve this problem.
The mere statement of the President of the United States that our laws do not warrant the assumption of "extraterritorial criminal jurisdiction,” can not save us from the consequences of that foreign assumption of 6 extraterritorial criminal jurisdiction,” even if such statement were incontestable. Thousands of American citizens are crossing the Atlantic yearly, and visiting countries that assume “extraterritorial criminal jurisdiction." A Cutting case, translated in one of the several European languages, may, with some modifications of even a more serious form, occur on the European Continent at any time, not on account of libel, like our original Cutting case, but on the ground of other acts, on which some foreign countries specially legislated against foreigners.
We should therefore institute a search through such foreign legislation against foreigners, in order to find out not only how far we are liable to trial abroad, but to investigate whether or not such legislation be valid in view of generally acknowledged principles of international law. And should we have legitimate reason to contest such foreign legislation, we might rather do so as soon as possił le instead of waiting for the occurrence of an actual case connected with such legislation.
It must be left, of course, with the Government of the United States to institute such search. All private means would prove to be insufficient. The Government alone can succeed in securing all information necessary for that task. The Government need only to issue an order to the diplomatic representants of the United States at foreign governments for a collection of all foreign laws, concerning punishment of foreigners for offenses committed abroad.
The urgent necessity of such a search the following lines will amply prove.
ATTITUDE OF THE GOVERNMENT OF THE UNITED STATES.
A.-DECLARATION OF THE PRESIDENT OF THE UNITED STATES ON
EXTRATERRITORIAL CRIMINAL JURISDICTION.
President Cleveland, in his message of December, 1886, to the reopened Forty-ninth Congress, in reviewing the noted “Mexican Cutting case,” (that is to say, the case of the American citizen Cutting, who had been arrested in Mexico on the charge of libel committed in Texas against a citizen of Mexico), said:
The incident has disclosed a claim of jurisdiction by Mexico, novel in our history, whereby any offense committed anywhere by a foreigner, penal in the place of its commission and of which a Mexican is the object, may, if the offender be found in Mexico, be there tried and punished in conformity with Mexican law.
The admission of such a pretension would be attended with serious results, invasive of the jurisdiction of this Government and highly dangerous to our citizens in foreign lands; therefore I have denied it and protested against its attempted exercise as unwarranted by the principles of law and international usages.
A sovereign has jurisdiction of offenses which take effect within his territory, although connected with or commenced outside of it, but the right is denied of any foreign sovereign to punish a citizen of the United States for an offense consummated on our soil in violation of our laws, even though the offense be against a subject of such sovereign. The Mexican statute in question makes the claim broadly, and the principle, if conceded, would create a dual responsibility in the citizen and lead to inextricable confusion, destructive of that certainty in the law which is an essential of liberty.
B.-THE TWO IMPORTANT PRINCIPLES LAID DOWN IN THE PRESIDENT'S
President Cleveland, thus, regarding acts committed in violation of our laws, denies the right of foreign jurisdiction in general, admitting it only where said acts, though connected with or commenced in this country, take effect in the foreign country. With other words, tlie President denies the right of extraterritorial jurisdiction of offense on the following two grounds : I. The authorities of the place of the commission of the offense
have the privilege of priority of jurisdiction. II. A dual responsibility is wholly inadmissible.