cruelly used until released by order of a Mexican judicial officer-all of which has been fully set forth in the previous correspondence with your legation on the subject. "The Mexican Government admits the arrest and imprisonment of Oberlander, but denies that he was taken in Mrs. Messenger's house or on United States territory. In support of this contention, and as conclusive proof of it, Mr. Mariscal, the Mexican minister for foreign affairs, presents a report of a criminal prosecution against the Mexican citizens charged by Oberlander in his memorial with kidnapping him in the United States, which report shows that the accused persons were found not guilty and were acquitted of the offence for which they were tried, and further that no appeal was taken from that judicial finding. "From the moment,' says Mr. Mariscal, in which this sentence assumed the character of res judicata, the legal fact was established of the nonexistence of the kidnapping on which Oberlander and Messenger founded their claim. This conclusion is unanswerable not only in accordance with the laws of this Republic, but also in accordance with the principles of international law which are recognized by all civilized nations. I believe,' he adds, it is a well established legal precept in the United States that a government must not be held responsible in any case whatever, with respect to another government, even when error is alleged to have taken place in a judicial sentence that works to the prejudice of a subject or citizen of the latter, if the complainant neglected to procure, it being in his power to do so, the redress of the injustice which he is supposed to have received, before the court of last instance which could revoke the sentence.' “The judicial proceedings to which Mr. Mariscal refers and upon which he relies as a bar to the claims of Oberlander and Messenger, were instituted by the Mexican judge who examined into the case. against Oberlander and released him. Of his own motion, this judicial officer held the persons concerned in the arrest and imprisonment of Oberlander to await criminal prosecution under section 1090 of the Mexican Criminal Code, which provides (as translated in Mr. Butler's despatch No. 392, of December 24, last) that any Mexican who by acts not authorized nor approved by the Government provokes a foreign war against Mexico or gives motive for the declaration of such war, or exposes the Mexicans to suffer injury or reprisals, shall be punished with four years imprisonment.' 66 The parties to this proceeding were, on the one side, the Mexican people and Government, and, on the other side, certain Mexican citizens who were charged with having committed a penal offence, not against Oberlander or Mrs. Messenger, but against the peace and welfare of the Republic of Mexico and the interests of their country 6 men. The prosecution was conducted, after the manner of criminal proceedings, by an officer of the Mexican Government and was controlled by him and by the court. If the officials charged with the vindication of the peace and dignity of the Mexican Republic in this proceeding were satisfied with the result of the trial, it was their privilege to acquiesce in it without appeal. No one else, so far as the report furnished the United States shows, had the right of appeal. Certainly Oberlander and Mrs. Messenger had no control of the proceedings nor connection with them. The object of the prosecution was not to determine their rights. The questions of fact upon which their claims are based were only incidentally and partially involved, and only to the extent that these facts evidenced a violation of the Mexican neutrality laws by Mexican citizens. The judgment of the court in this prosecution ought to have no legal effect upon the right to indemnity presented by the United States in behalf of Oberlander and Mrs. Messenger. The judgment extended only to the fact that the defendants were not guilty of violating the statute under which they were prosecuted. The evidence and other considerations which induced the judgment are not a part of it, and do not extend its legal consequences. "The authorities (Wheaton, Wharton and Story) cited by Mr. Mariscal in support of his contention relate to the international effect of judgments in civil cases as they affect the rights of parties duly summoned and afforded opportunity to be heard respecting the precise matter in question, and to judgments in criminal proceedings as they affect the rights and liberties of the defendants therein. The judgment in a civil case may be admitted to be in general conclusive upon the parties as to the issues involved in the suit, but no further. In respect of criminal cases, the authorities seem not to be in perfect accord. Mr. Mariscal quotes the following from Wheaton: ‘A valid sentence, whether of conviction or acquittal, pronounced in one state, may have certain indirect and collateral effects in other states. If pronounced under the municipal law in the state where the supposed crime was committed, or to which the supposed offender owed allegiance, the sentence, either of conviction or acquittal, would, of course, be an effectual bar (exceptio rei judicatae) to a prosecution in any other state.' Wharton (Conflict of Laws, sec. 828, note 1) quotes this proposition of Wheaton's and says of it: 'Mr. Wheaton on this point speaks without his usual precision.' Wharton says (section 828) that while a judgment of a court delicti commissi would be final, to the effect that the act in question was not penal in that country, no extraterritorial force can be assigned to a decision of the judex domicili unless he has international jurisdiction. The judgment in such a case could not be regarded as barring a prosecution in the forum delicti commissi. Again he says (section 833): We have already seen that penal laws have no extra-territorial force. The same limitation. applies to foreign penal judgments, since otherwise all that would be necessary to give ubiquitous effect to a penal law would be to put it in the shape of a judgment.' Brocher (Droit Int. Privé, 103, as quoted by Wharton) says 'Les jugements rendus in matière penale ne depassent généralement pas les frontières.' The eminent authority on private international law, Bar (1st edition, section 143, page 685), says: A judgment of acquittal is a declaration of the court which administers the criminal authority of the State to this effect, that no sentence against the accused can be justified, either because his guilt was not proved, or because the act in question could not be punished. The lex specialis implied in a judgment of this kind must have the same, but no greater effect upon the criminal jurisdiction of the other country than a lex generalis to the same effect. In so far, then, as a deliverance by the law of the place where the deed was done excludes punishment in the domicil of the accused, it will be excluded by such a judgment, whereas a judgment of this kind pronounced at the domicil of the accused does not by any means exclude a prosecution by the state in whose territory the deed was done.' Even if the doctrine quoted from Wheaton be accepted, its only effect in application to the facts of this case would be to bar a prosecution in the United States of the persons acquitted by the Mexican court for the identical offence of which they were acquitted; that is the offence of committing acts, tending to bring war upon Mexico or to subject Mexican citizens to reprisals. In California where the principal injury of which Oberlander complains was done, the acts charged by him upon these persons constitute the common law offences of assault and battery with kidnapping. Should these persons, therefore, cross the boundary line into the jurisdiction of the State of California they would be liable to indictment and trial for the offences against the laws of California involved in the acts attributed to them; and the plea of acquittal in Mexico of the charge upon which they were there tried would not be a bar to such prosecution. It is a fundamental principle of international law,' says Wharton (section 813), 'that each state is primarily authorized to punish offences against itself. Of course it cannot invade the territory or the ships of another country in order to arrest the offender. But the arrest may certainly be made whenever the offender is found in the territory of the offended sovereign.'" Mr. Olney, Sec. of State, to Mr. Ransom, min. to Mexico, Nov. 30, 1895, For further correspondence in relation to this case, see For. Rel. 1897, The case having been submitted to arbitration, on a claim for indemnity. the arbitrator, Señor Don Vicente G. Quesada, Argentine minister at Madrid, dismissed the claim on the ground that the claimants "did not bring the criminal and civil actions which they had a right to bring before the courts of the country [Mexico], but had recourse to diplomacy without any good cause to do so." (For. Rel. 1897, 387.) "A certificate of discharge from a court in bankruptcy can have no validity in a foreign country as against a foreign creditor representing a debt contracted in a foreign country unless he has brought his claim within the jurisdiction of the courts of the United States by proving it, and thus putting himself in a position to share in the dividends. Whether, in case he does so prove it, such certificate will have weight in a foreign country will depend upon the local laws in such country, whose courts will undoubtedly act with due regard to the comity of nations." Mr. Fish, Sec. of State, to Mr. Riger, October 21, 1869, 82 MS. Dom. Let. 224. See Wharton, Confl. of Laws, §§ 531, 804; Dicey, Confl. of Laws, Moore's Am. Notes, 467. 3. QUESTIONS OF INTERNATIONAL RIGHT. § 199. "I now acknowledge your several letters of Feb'y 8, Mch. 17, April 8, June 20, July 13 & 26. "If the Spanish Government meant to assert the doctrine that the decisions of its tribunals on questions affecting the rights of other nations under Treaties and the Law of Nations were definitively binding on other nations, it has taken a ground which its own reflections must abandon. Every sovereign is answerable for the conduct of the instrumental authority in relation to other sovereigns. A certain degree of confidence is due to the ordinary agencies by which the national obligations are fulfilled, but an appeal always lies from them to the supreme authority, where this right has not been mutually relinquished by treaty. No such relinquishment can be pretended against the United States in favor of the Spanish tribunals. They have therefore the clearest right to disown the illegal decrees of those tribunals, and to require from the Government of Spain the fulfillment of the treaty violated by them. The like doctrine was advanced before the Board of Commissioners under the 7th article of the British treaty of 1794. It was rejected by that joint tribunal, and decisions of the British Admiralty Courts, not excepting that of the highest resort, were reversed in favor of American claims. The case is indeed too plain to need argument, or to admit of perseverance in error by a government which respects its reputation either for justice or intelligence." Mr. Madison, Sec. of State, to Mr. Erving, chargé at Madrid, Oct. 18, 1807, For numerous decisions on this subject, see Moore, Int. Arbitrations, III. See, also, supra, § 1, vol. 1, p. 6. III. EXTRATERRITORIAL CRIME. I. MISCELLANEOUS CASES AND OPINIONS. $ 200. "No act committed in one country, however criminal, according to its laws, is criminal according to the laws of the other. Crimes, in a legal sense, are local, and are so only because the acts constituting them are declared to be so by the laws of the country where they are perpetrated. Great Britain can not by her laws make an act committed within the jurisdiction of the United States criminal within her territories, however immoral of itself, and vice versa. The proposition is too clear to require illustration or to be contested; but, if that be admitted, it must also be admitted that the criminality referred to in the proviso is to be judged of by the laws of the place within whose jurisdiction the act was charged to have been perpetrated, and not where the fugitive is found." Mr. Calhoun, Sec. of State, to Mr. Everett, August 7, 1844, MS. Inst. Great "We hold that the criminal jurisdiction of a nation is limited to its own dominions and to vessels under its flag on the high seas, and that it can not extend it to acts committed within the dominion of another without violating its sovereignty and independence. Standing on this well-established and unquestioned principle, we can not permit Great Britain or any other nation, be its object or motive what it may, to infringe our sovereignty and independence by extending its criminal jurisdiction to acts committed within the limits of the United States, be they perpetrated by whom they may. All therein are subject to their jurisdiction, entitled to their protection, and amenable exclusively to their laws." Mr. Calhoun, Sec. of State, to Mr. Everett, September 25, 1844, MS. Inst. The courts of the United States do not execute the penal laws of another "The conflicting laws on the subject of allegiance are of a municipal character, and have no controlling operation beyond the territorial limits of the countries enacting them. All uncertainty as well as confusion on this subject is avoided by giving due consideration to the fact, that the parties to the question now under consideration are two independent nations, and that neither has the right to appeal to its own municipal laws for the rules to settle the matter in dispute, which occurred within the jurisdiction of a third independent power." Mr. Marcy, Sec. of State, to Mr. Hulsemann, Austrian chargé, Sept. 26, 1853, H. Ex. Doc. 1, 33 Cong. 1 sess. 33, in relation to the Koszta case. H. Doc. 551-vol 2—15 |