On the ground of these two generally acknowledged principles the President's protest against Mexico's attitude seems to be thoroughly justified. For, libel is punishable in Texas, and the offense of libel is consummated where the libelous paper first was published. Therefore Cutting's alleged offense, if ever, should not be prosecuted outside this country, even though the alleged offense were against a citizen of Mexico, and said libelous paper, published in Texas, were circulating in Mexico. The writer or publisher of a libel, in circulating his libelous paper abroad, does not commit a second offense; circulating being the purpose of publishing, circulating and publishing are united to causal relationship. The circumference of the circulation of a malicious libel may only be regarded as a measure of the degree of maliciousness of the libeler, and, in consequence of that, referred to in limiting the punishment.

C.-CONCLUSIONS, TO THE NEGATIVE, FROM THE PRESIDENT'S TWO PRIN

CIPLES.

As indisputably right as are the two principles laid down in the President's message, denying Mexico's right of jurisdiction of Cutting's Texan libel against a Mexican, the logic consequences of these two principles might appear, too.

If, as we saw, the "privilege of priority," on the part of the State of the commission of the offense, and a "dual responsibility" are the two grounds for denying to a foreign government jurisdiction of foreign offenses against their citizens, such foreign jurisdiction must be conceded, where either of those grounds is wanting; that is to say, where

(1) The State of the commission of the offense is prevented from or renounces exercising its privilege of priority of jurisdiction, and, thus,

(2) The objection of a "dual responsibility" is overcome. Two cases may illustrate the foregoing conclusion:

I.

Suppose Cutting really having committed said libel in Texas, thereby injuring a Mexican citizen and being liable to punishment in either State. Suppose further, Cutting having gone or fled to Mexico and been caught there.

Now the United States claim their "privilege of priority of jurisdiction."

But Mexico might answer:

6

"We recognize your privilege of priority of jurisdiction,' but you are not in position to exercise it. How can you guaranty that Cutting will return into your territory? The extradition treaty between the United States and Mexico does not embrace libel case. We have no more right to extradite Cutting than you would have to demand his extradition. You being thus prevented from exercising your 'privilege of priority,'

our secondary right of jurisdiction, our secondary right to punish Cutting according to our laws, may take place, and by our trial Cutting's 'dual responsibility' shall cease at once."

II.

Take for granted, that the case of libel is embraced by extradition. treaty, or that no treaty at all exists, and extradition, according to the theory adopted by some governments, is left with each government as a matter of comity.

(See Halleck," International Law," and Wharton's "Digest of International Law of the United States.")

Take, then, for granted, that Mexico is ready to extradite Cutting. The United States, however, might say:

"The big expenses of extradition are not warranted either by the person concerned of, nor by the case itself. We, therefore, renounce getting Cutting extradited."

In this case, too, Mexico could "legally" proceed to trial against her prisoner Cutting.

D.-CIRCUMSTANCES NOT PROVIDED FOR IN THE PRESIDENT'S DECLA

RATION.

We were dealing, heretofore, with cases relating only to the President's declaration on "Extraterritorial criminal jurisdiction." It were a wholly unwarranted claim, that a message to Congress, while dealing with so many important items, should settle within so sparely limited a space of print all questions discussed in such document. It is, therefore, quite self-understanding, that the President's declaration is far from exhausting the subject-matter. The President, in denying to any foreign sovereign the right of extraterritorial criminal jurisdiction, had in view only foreign jurisdiction of acts committed in this country in violation of our laws. In denying, by very strong reasons, to any sovereign the right of assumption of such jurisdiction, the President did not need expressly to declare, that, ex fortiori, his denial includes foreign jurisdiction of American acts not punishable by our laws. The President did not need expressly to declare it, because it is held a general rule, that no criminal responsibility can be stated for a deed not infringing on the penal laws of the place of its commission; with other words, "criminal responsibility is cohesive to statutory provision." (Wharton, Criminal Law)

Would Cutting, for instance, have been satisfied with slandering in Texas that Mexican, with calling him a robber, a murderer, etc., instead of libeling him, the Government of the United States might have interfered with Mexican criminal proceedings against Cutting-provided that slander be in Mexico, like in Europe, the same criminal offense as is libel -on the ground that slander in this country warrants only civil suit

but no criminal jurisdiction at all, and, indeed, the less of a foreign government than of the authorities of this country.

Some other cases in addition to slander may be imagined that, contrary to foreign criminal legislation upon them, can be settled in this country by civil suit only, or that are even not subjected in this country to any legal proceedings at all.

In all such cases the denial of any right whatever of foreign government to assume extraterritorial jurisdiction would seem a "matter of course."

And yet, we should remember that millions of people are sometimes divided in their opinions as to what may be a "matter of course." Perhaps those countries that assume extraterritorial criminal jurisdic tion might be able to defend the course they took by some reasons which should appear a "matter of course," too. Perhaps that foundation of extraterritorial criminal jurisdiction might show some instances warranting even that principle of "cohesion of responsibility and local stat utory provision" to be overruled in certain cases by a higher principle common to all mankind. Perhaps it might be proven that the nondisallowance of an act in one state is by no means an obligation to other states to allow themselves to suffer from those acts. Perhaps it might be proven that a right of extraterritorial criminal jurisdiction could be maintained (irrespective of and without prejudice to the ac knowledged two principles adopted by our Government) by a principle suspending all ordinary laws.

We should, therefore, not only declare why we are disinclined to recognize any right of extraterritorial jurisdiction, but we shall have to answer the other party, why their reasons for assuming extra-territorial criminal jurisdiction, as far as not defeated by the two principles laid down in the President's message, should not be sustained.

E. RESTRICTIONS AS TO THE CONCLUSIONS FROM THE PRESIDENT'S DECLARATION.

The President, in concluding the discussion of the Cutting case, says: Whatever the degree, to which extraterritorial criminal jurisdiction may have been formerly allowed by consent and reciprocal agreement among certain of the European states, no such doctrine or practice was ever known to the laws of this country or of that, from which our institutions have been mainly derived.

We shall see, hereafter, in Chapter II, D, that this statement of the President must be conceived "cum grano salis." For we have to distinguish extraterritorial criminal jurisdiction at large from extrater ritorial criminal jurisdiction under the authority of international law. The assertion of the President, that "no such doctrine or practice was ever known to the laws of this country," should be restricted to " extraterritorial criminal jurisdiction at large." That is to say, the United States, indeed, wisely refrain from assuming extraterritorial criminal jurisdiction of offenses, that do not touch this country, but they, more

wisely, assume jurisdiction of certain extraterritorial offenses, that af fect this country or mankind in general. They assume such extraterritorial criminal jurisdiction under the authority of international law, as we shall see in Chapter II, D.

We do not decide here whether that Mexican law on foreign libel comes under "extraterritorial criminal jurisdiction at large," deservedly denied by the United States, or under "extraterritorial criminal jurisdiction under the authority of international law," as practiced by the United States themselves. We indicate here the possibility only of the President's denial of "extraterritorial criminal jurisdiction " proving insufficient as to that Mexican statute, should it be shown that the Mexican statute is founded on the same principles of international law, from which the United States' legislation on foreign offenses arose, which we shall have to deal with in Chapter II, D.

Before going into the details of this investigation, we have to draw the foundation of extraterritorial criminal jurisdiction, to state its origin and circumference, measured by the sound extraterritorial laws of the United States.

CHAPTER II.

FOUNDATION OF "EXTRATERRITORIAL CRIMINAL JURISDICTION.”

A.-GENERAL VIEW. ORIGIN AND AIM OF TERRITORIAL CRIMINAL LEGISLATION.

The best way of stating the principles of extraterritorial criminal jurisdiction is to explain the origin and aim of territorial criminal jurisdiction.

We issue penal laws and punish crimes for our self-defense and for the prevention of acts annihilating our safety.

Self-defense is the cause and prevention of crimes the aim of criminal legislation.

But as we are confident that all civilized nations are interested alike in punishing acts destroying the safety of mankind, and as it is rather impossible to watch over the whole world, we satisfy ourselves with legislating on crimes committed on our soil. And so all other nations do. Hence the general understanding, that crimes, in the legal sense, are local.

We confine, therefore, punishment of murder, etc., to such acts committed within our acknowledged jurisdiction, not because we believe murder committed within foreign jurisdiction to be a harmless deed, or an act not disallowed, but because we are sure that all civilized nations take similar precautionary steps against such crimes as we do. Should we once learn that a state, supposed to be civilized, omitted or abolished laws punishing capital crimes, the United States certainly would resolve to resort to preventive measures against visitors from such state, and so make a murder committed there indictable in this country, should the perpetrator reach our shores. We should do so, because we could not consider that state any longer a civilized one.

In that case we may assume extraterritorial criminal jurisdiction according to the law of nations.

The understanding, that crimes are local, is valid as to civilized territories only, but not as to uncivilized ones.

It is of no matter whether there be a slight difference between the states as to the degree of the gravity of a certain crime; the essential point that reassures us is the conscience, that, as to capital crimes and grave offenses, all civilized nations feel in their own behalf the same necessity of legislating in some efficient way.

12