The first modern criminal code of Japan was enacted in 1880 and promulgated in 1882, having been framed by a French jurist.1 Since then the trend of Japanese eclecticism in legal matters has been toward German models, and the new code is of that source. Its interest to Americans, however, lies not so much in that fact as in its bearing upon international law, and particularly as to jurisdiction over offenses committed by foreigners outside of Japan.

Section 3 of the instrument provides:

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This law also applies to foreigners who have committed offenses mentioned in the preceding paragraph 3 against Japanese subjects outside the Empire.

In adopting this provision Japan appears to have aligned herself definitely with a group of European nations which reject the doctrine that crime is territorial.

"There is a large number of codes," observes Professor Snow," which take jurisdiction of offenses against the state committed by them [foreigners] 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."

But however prevalent this doctrine may be in Continental Europe it is not the Anglo-Saxon doctrine and nowhere has the contrary been more vigorously maintained than in the United States. In the celebrated Cutting Case, which arose in 1886, the American Government stated its position clearly. Secretary Bayard, in writing to Minister Gebhard, summarized the facts and the legal principles as follows:

On June 18 last A. K. Cutting, a citizen of the United States, who for the preceding eighteen months had been a resident, “off and on," of Paso del Norte, Mexico, and as to whose character for respectability strong evidence has been adduced, published in a newspaper of El Paso, Tex., a card commenting on certain proceedings of Emigdio Medina, a citizen of Mexico, with whom Mr. Cutting has been in controversy. For this publication Mr. Cutting was imprisoned on the 22d of June last, at El Paso del Norte, in Mexico.

1 M. Boissonade de Fontarabie.

2 The Criminal Code of Japan; translated from the original Japanese text by J. E. de Becker (1907).

3 Includes homicide, assault, false imprisonment, kidnaping, libel and slander, robbery and theft, fraud and intimidation, embezzlement, etc.

4 Cases on International Law, p. 174 n.

5 Woolsey (International Law, sec. 76) specifically refers to Sardinia. Taylor (International Law, sec. 191) mentions also the Netherlands.

But the paper was not published in Mexico, and the proposition that Mexico can take jurisdiction of its author on account of its publication in Texas is wholly inadmissible and is peremptorily denied by this Government. It is equivalent to asserting that Mexico can take jurisdiction over the authors of the various criticisms of Mexican business operations which appear in the newspapers of the United States. If Mr. Cutting can be tried and imprisoned in Mexico for publishing in the United States a criticism on a Mexican business transaction in which he was concerned, there is not an editor or publisher of a newspaper in the United States who could not, were he found in Mexico, be subjected to like indignities and injuries on the same ground. To an assumption of such jurisdiction by Mexico neither the Government of the United States nor the governments of our several States will submit. They will each mete out due justice to all offenses committed in their respective jurisdictions. They will not permit that this prerogative shall in any degree be usurped by Mexico, nor, aside from the fact of the exclusiveness of their jurisdiction over acts done within their own boundaries, will they permit a citizen of the United States to be called to account by Mexico for acts done by him within the boundaries of the United States. On this ground, therefore, you will demand Mr. Cutting's release.7

The Mexican contention is thus referred to by the same functionary: On Saturday last, the 24th instant, I was called upon by Mr. Romero, the minister from Mexico at this capital, in relation to the case referred to.

Mr. Romero produced to me the Mexican laws, article 186, whereby jurisdiction is assumed by Mexico over crimes committed against Mexicans within the United States or any other foreign country; and under this he maintained the publication of a libel in Texas was made cognizable and punishable in Mexico. And thus Mr. Cutting was assumed to be properly held.

This claim of jurisdiction and lawful control by Mexico was peremptorily and positively denied by me, and the statement enunciated that the United States would not assent to or permit the existence of such extraterritorial force to be given to Mexican law, nor their own jurisdiction to be so usurped, or their own local justice to be so vicariously executed by a foreign government.

In the absence of any treaty of amity between the United States and Mexico providing for the trial of the citizens of the two countries respectively, the rules of international law would forbid the assumption of such power by Mexico as is contained in the penal code, article 186, above cited. The existence of such power was and is denied by the United States.8

Cutting was subsequently released by the Mexican authorities, on a ground ostensibly different from that contended for by the American. Government. The latter then demanded an indemnity and also asked the repeal or modification of the obnoxious article 186. Secretary Bayard, in pressing these points, declared:

7 Wharton, Digest of International Law, Vol. II, pp. 439–440. Id., p. 441.

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This Government is still compelled to deny, what it denied on the 19th day 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 consensus of opinion of the leading authorities on international law at the present day.9

It seems clear, therefore, that whatever may be the attitude of the European powers toward this article of the new code, our own Government could not concede to another the right to punish an American citizen for an alleged offense committed in our own territory.

But the provision above quoted is not the only one in the new code which fails to harmonize with settled principles of Anglo-Saxon jurisprudence. Section 5 provides :

Even though the case may have been adjudicated upon in a foreign country and a final and conclusive judgment rendered in respect to same, this shall be no bar to the institution of entirely new proceedings and the infliction of punishment for the same act [in Japan]. If, however, the offender has already undergone the punishment to which he was sentenced in a foreign country, or any portion thereof, the court may either reduce the penalty or remit the execution thereof.

This, it will be seen, squarely conflicts with the familiar principle of double jeopardy or autrefois acquit. A British or American citizen once tried upon any charge is immune from further prosecution for the same offense. Could either Government concede to another a right which it

9 Snow, Cases on International Law, pp. 173-174.

not only expressly disclaims for itself but guarantees to protect the citizens from?

Doubtless a method will be found of adjusting the difficulties which might arise from an attempt to enforce this provision, but it serves to illustrate the wide variance in the theories of criminal jurisdiction and the necessity of a clear understanding of all phases in preserving the delicate poise of international relations. Certainly, in the light of recent events, these provisions of the new Japanese penal code deserve the careful consideration of our statesmen and diplomats, and scarcely less that of all thoughtful citizens.

POSTAL AGREEMENT WITH GREAT BRITAIN

On August 21, 1908, the following very interesting and important order (No. 1667) was issued by Postmaster-General Meyer:

The Postal Administration of Great Britain having concurred therein:

It is hereby ordered, that commencing on the 1st day of October, 1908, the postage rate applicable to letters mailed in the United States, addressed for delivery at any place in the United Kingdom of Great Britain and Ireland, shall be two (2) cents an ounce or fraction of an ounce.

Letters unpaid or short paid shall be dispatched to destination, but double the deficient postage, calculated at said rate, shall be collectible of the addressees upon the delivery of the unpaid or short-paid letters.

The importance of the regulation lies in the fact that for the first time in our history Great Britain and the United States are treated for purposes of postage as one and the same country. From the 1st day of October, 1908, the rate of postage to Great Britain will thus be the same as to any point within the United States, thus abolishing for the letter writer the artificial and political distinction existing between the two great English-speaking communities.

Steam, electricity, and the telegraph have brought the nations of the earth together, and the rapid communication of ideas tends to maintain good relations by giving an opportunity to clear up or avoid misunderstanding. If industry and commerce draw nations closer together and make for peace by creating a bond strained to the breaking point by war, and if it be true, as Mr. Gladstone says, that "ships that travel between this land and that are like the shuttle of the loom that is weaving a web of concord between the nations," it follows that any governmental regulation reducing postage encourages the exchange of

letters and must therefore be considered in the interest of international fellowship and peace.

It is common knowledge that the modern postal system is due to the reforms of Sir Roland Hill. The following incident, however, which led to the reform may not be so generally known. As related by Amasa Walker and Mr. Burritt, it appears that Mr. Hill was at the London post-office when a poor woman inquired for a letter. One was given to her by the clerk, and being informed that there were two or three shillings due for postage, as postage was not ordinarily prepaid, she returned it, saying that she had not the money. As she was turning to leave the office, Mr. Hill asked her from whom she expected a letter. "From my son in Australia." "I will give you the money to pay the postage," said Mr. Hill. "I thank you, sir," said the woman. "It is not necessary. It was the understanding between me and my son that he should write once a month, and if a letter comes into the office I know that he is well without being obliged to pay the postage." This led Mr. Hill to consider how great an obstruction the then existing rates of postage were upon social, moral, and business interests, as well as a temptation to dishonesty, and forthwith his influence and efforts were devoted to the reform of the system.1

On devoting himself to the question of postage Mr. Hill ascertained that there were three great sources of expense:

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First, taxing" the letters, that is, ascertaining and marking the postage on each, for there were upwards of forty rates on single inland letters alone; second, the complication of accounts arising from the system, postmasters having to be debited with unpaid postage on letters transmitted to their offices and credited with their payments made in return; third, the collection of the postage on delivery. From these facts it was clear that a vast economy would be effected if prepayment, which was very rare, was made a custom. He next examined the cost of the actual conveyance and distribution of letters, and made his great discovery "that the practice of regulating the amount of postage by the distance over which an inland letter was conveyed, however plausible in appearance, had no foundation in practice, and that consequently the rates of postage should be irrespective of distance." [Dictionary of National Biography, XXVI, 418.]

The meaning of the discovery was simple. Distance within the confines of a country was practically a negligible quantity. A small uniformrate of postage might therefore be established, and by means of a stamp.

1 Cited from Northend's Life and Labors of Elihu Burritt, p. 33, footnote.