is-within the United States held to be a misdemeanor, not of high grade; but in Mexico may be associated with penal results of the gravest character. An act may be created by a Mexican statute an offense of high grade, which in the United States would not be punishable in any degree. The safety of our citizens and all others lawfully within our jurisdiction would be greatly impaired, if not wholly destroyed, by admitting the power of a foreign state to define offenses and apply penalties to acts committed within the jurisdiction of the United States. "The United States and the States composing this Union contain the only forum for the trial of offenses against their laws, and to concede the jurisdiction of Mexico over Cutting's case, as it is stated in Consul Brigham's report, would be to substitute the jurisdiction and laws of Mexico for those of the United States over offenses committed solely within the United States by a citizen of the United States. "The offense alleged is the publication in Texas, by a citizen of the United States, of an article deemed libelous and criminal in Mexico. No allegation of its circulation in Mexico by Mr. Cutting is made, and indeed no such circulation was practicable or even possible, because the arrest was summarily made on the same day of the publication in the English language in Texas, on the coming of the alleged writer or publisher into Mexico. And the Mexican correspondence accompanying Mr. Mariscal's refusal to release Cutting, found in the accompaniments to Minister Jackson's dispatch, No. 272, of July 22, 1886, shows that the 186th article of the Mexican code is the ground of the jurisdictional claim. "Under this pretension, it is obvious that any editor or publisher of any newspaper article within the limits and jurisdiction of the United States could be arrested and punished in Mexico if the same were deemed objectionable to the officials of that country, after the Mexican methods of administering justice, should he be found within those bor. ders. "Aside from the claim of extraterritorial power, thus put forth for the laws of Mexico and extending their jurisdiction over alleged offenses admittedly charged to have been committed within the borders of the United States, are to be considered the arbitrary and oppressive proceedings which, as measured by the constitutional standard of the United States, destroy the substance of judicial trial and procedure, to which Mr. Cutting has been subjected." Mr. Bayard, Sec. of State, Report to the President in Cutting's case, Aug. 2, 1886. MSS. Report book: Sen. Ex. Doc. No. 224, 49 Cong., 1 Sess. See further as to Cutting's case, infra, § 189. The courts of the United States do not execute the penal laws of another country. 2 Op., 365, Berrien, 1830; see Whart. Conf. of Laws, § 4. 49 (6) FOREIGN SENDING OVER OF PAUPERS AND CRIMINALS FORBIDDEN § 16. The transport of paupers from Cuba to the United States is in viola tion of United States laws and of international comity. Mr. Fish, Sec. of State, to Mr. Bernabé, May 16, 1872; MSS. Notes, Spain. The act of Congress of 1862, authorizing the colonization of certain classes of persons of African derivation in tropical countries was condi tioned on the assent of the country in which such colonization was proposed. Mr. Seward, Sec. of State, to Mr. Molina, Sept. 24, 1862; MSS. Notes, Cent. As to the right of non-reception or expulsion of such persons, see infra, § 206. XIV. EXCEPTION AS TO NECESSITY. § 17. As will be seen more fully hereafter, intrusion on the territory or territorial waters of a foreign state is excusable when necessary for self-protection in matters of vital importance, and when no other mode of relief is attainable. Infra, §§ 38, 50. XV. EXCEPTION AS TO FOREIGN SOVEREIGNS, FOREIGN MINISTERS, AND FOREIGN TROOPS. § 17a. "The perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete, exclusive territorial jurisdiction which has been stated to be the attribute of every nation. "First. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. ***. "Second. A second case, standing in the same principles with the first, is the immunity which all civilized nations allow to foreign ministers. "Third. A third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions." Marshall, C. J., Schooner Exchange v. McFaddon, 7 Cranch, 136, As to passage of troops, see supra, § 13. As to immunities of foreign ministers, see infra, § 92 ff. As to immunities of national ships, see infra, § 36. XVI. EXCEPTION AS TO UNCIVILIZED LANDS. & 176. In certain uncivilized or semi-civilized lands there is by force of treaty the right granted to the United States to establish a local consular judiciary to adjudicate questions in which citizens of the United States are concerned. (Infra, § 125.) The right, also, bas been assumed to arrest in such lands fugitives from justice, or offenders against the Government of the United States. Sce Mr. Seward, Sec. of State, to Mr. McMath, April 28, 1862; MSS. Inst. Barbary States; Dip. Corr., 1862. (Seo infra, § 268; Whart. Conf. of Laws, § 15.) XVII. DUTY of soverEIGN TO RESTRAIN AGENCIES LIKELY TO INJURE ANOTHER COUNTRY. (1) PREDATORY INDIANS. § 18. The right to pursue Indians across the border is discussed infra, § 50. "It is apprehended that the Mexican Government is not well aware that although for a heavy pecuniary consideration it has released the United States from the obligations in respect to predatory incursions of Indians from this country into Mexico, the obligations of that Government in respect to similar marauders from that country into the United States are entire, as provided for both by public law and by treaty. The duty of that Government, therefore, at least to aid in restraining its savages from depredations upon us, seems to be clear. If this duty shall continue to be neglected we may be compelled in self defense to disregard the boundary in seeking for and punishing those bandits." Mr. Evarts, Sec. of State, to Mr. Foster, May 28, 1877. MSS. Inst., Mexico. (See Mr. Fish, Sec. of State, to Mr. Nelson, June 26, 1871; MSS. Inst., Mex., For. Rel., 1871.) "Referring to the correspondence which has been exchanged between us in relation to the movements of the lately hostile Indians under the lead of Sitting Bull, I have now the honor to bring to your attention the substance of recent information received through the responsible agents of the Department of the Interior, and to invite earnest consideration of the important points thereby suggested. "This Government has been informed that companies of hostile Indians from Sitting Bull's camp have been and are scattered about, in groups of lodges of varying numbers, throughout the entire northern part of the Indian reservation having Fort Peck, on the Poplar River, in Montana Territory, for its headquarters and agency. The peaceable resident Indians of the reservation have daily come into the agency with bitter complaints of the encroachments of Sitting Bull's men on their special hunting grounds. They say that they find Uncapapas from Sitting Bull's camp everywhere, driving and scattering the buffalo and other game, and stealing their horses and running them over the boundary line, thus in every way diminishing the ability and opportu nity of the agency Indians to maintain themselves. There is every reason to believe that Sitting Bull himself was, so late as the 19th ultimo, within the territory of the United States, and had been camped south of the boundary line since February last, and that practically all his Indians had crossed to the southward of our northern boundary, there being, as they claimed, no game for their subsistence on the Canadian side. This state of things naturally gives rise to disquietude, notwithstanding the later information communicated to me by you in a recent conference, that Sitting Bull and his chief lodges of warriors were at last advices again on British territory. "It is true that these wandering movements of an irreconcilable and declaredly unfriendly Indian force from one side to the other of the frontier, do not indicate any determinate purpose, or any disposition even, on their part to abandon a residence under British protection, or to renew the state of warfare with the Government of the United States, whose active hostilities were only arrested by the refuge sought and afforded on the soil of a neighboring state. Yet the situation now existing on both sides of the border cannot but be regarded as one requiring the most urgent and careful attention of both Governments, lest by uncertainty as to the precise scope and definition of their obli gations towards each other, and indecision in their treatment of the Indians domiciled within their jurisdiction, undue and unnecessary difficulties may grow out of the present attitude of these tribes which have, in the most formal manner possible to their savage state, renounced their rights in the one country and rejected terms of security, subsistence, and peace, to seek and receive asylum and residence in the other. "Should these erratic movements continue, this Government may at any moment be brought face to face with the necessity of suppressing the marauding operations of the hostile Indians under Sitting Bull's lead, or even of resorting to active military operations to repel open attacks upon the lives and property of its own people. "It has, as it conceives, a perfect right to regard as a menace to domestic peace and tranquillity the presence within its borders of a warlike body of disaffected Indians, who have explicitly defied its jurisdiction and by their own act embraced the protection of another power. It may be that, in the interest of the security and well being of both friendly Indians and white natives in the border-land, this Government may feel constrained to enforce submission upon those who, after openly denying its laws and power, and withdrawing them selves therefrom, may return within its jurisdiction, with or without apparent hostile intent. Should this Government decide to compel a submission of any of these Indians appearing on the southern side of the frontier line, it would look upon a new recourse for asylum across the line as calling for prompt and efficient action by the British Government to repulse them, or to disarm, disable, and sequestrate them under a due responsibility for them as a component part of the terri torial population of the British-American dominion. "The importance of a distinct understanding on this point is ap parent. It is impossible to give countenance to any line of argument or assumption by which these savages may quit and resume allegiance and protection at will, by the mere circumstance of passing to the one side or the other of a conventional line traced through the wilderness. Before the era of hostilities began they were undoubtedly subject to the jurisdiction of the United States as much as the land they then occupied, and even though their migrations in peace. able search of food might, at times, carry them temporarily across the frontier, they were, therefore, none the less a part of the population of the United States, and alien to British rule. But when hostilities began, and the armed force of the United States was summoned to enforce their submission, they sought and received asylum and protection across the border. The significance of their acts of submission to British protection, as they themselves understood and intended them, admits of no doubt as to the extent of their intention to assume the character of inhabitants of British domain, and their belief that they had done so; and no act of Her Majesty's authorities in the North American possessions of Great Britain has looked toward denial of this rudely asserted right to British protection, and still less toward enforcement upon them of submission to the authority of the United States, or of subjecting them to the treatment usually observed toward revolted aliens on the territory of a friendly power. "In this aspect of their relations to the British Government, this Government conceives that it is bound now to regard the Indians of Sitting Bull's command as British Indians. Should they therefore make incursions of a hostile character, and should their movements threaten the property, the domain, or the means of subsistence of the friendly Indian tribes of the United States dwelling peaceably on their assigned reservations, or should active military operations on the part of the United States against them become for any cause inevitable, I beg to call the attention of Her Majesty's Government to the gravity of the situation which may thus be produced, and to express a confident hope that Her Majesty's Government will recognize the importance of being prepared on the frontier with a sufficient force either to compel their surrender to our forces as prisoners of war, or to disarm and disable them from further hostilities, and subject them to such con |