The Parliament evidently took the Sultan at his word and proceeded to elicit the truth by perfect liberty of discussion, which, as the Sultan said, had been ordained by the constitution. The independence manifested was so distasteful to the new convert to constitutional government that the Parliament was "suspended" in February, 1878, and both it and the constitution, as well as the Ottoman Empire, have been in suspense ever since. It is impossible to predict the outcome of the present experiment. The Sultan, with whom the reform party has to deal, got rid of the constitution and its Parliament in 1877, and unless the army, when its arrears are paid, remains loyal to the reformers it is not impossible that the Sultan may abolish constitution and Parliament, notwithstanding his pledged faith to the contrary, as he did just thirty years ago. Friends of constitutional liberty in all parts of the world wish the movement every success, for it is evident that the Ottoman Empire must save itself if it is to be saved, and it is equally evident that this can only be done by internal reorganization. From an international standpoint the changes which have taken place, and which it is hoped will be permanent, do not affect the international standing of Turkey. International law is indifferent to forms of government, and while autocratic governments may prefer despotisms, and monarchs, whether they be emperors or constitutional kings, may look with that favor upon monarchies which republics extend to republics, the form of government, provided it guarantee international obligations, is left to the discretion of its subjects or citizens. The days of the French Revolution are passed, and no sovereign would seek by force of arms to restore a ruler who had lost the confidence of his people or to impose upon any member of the family of nations a particular form of government. International law stops at the threshold of each and every nation, and rightly, for it seeks solely to regulate the foreign, not the internal, relations of nations. The state is a legal entity, a political corporation, and a change in the head of the state or system of government is, legally speaking, of as little importance as the succession by constitutional means of sovereign or president, or as is the change of a chairman or president of a corporation. Such change may be internally important. For example, the election of Mr. Taft or Mr. Bryan may be a matter of grave concern to the American people, but the question of President Roosevelt's successor is one which neither concerns international law nor our foreign relations. This doctrine, elementary though it be, is the result of centuries of conflict, but it would be difficult to find a publicist of repute who would dispute its correctness in practice as well as in theory. The doctrine has frequently been applied by the Supreme Court of the United States to the States as members of the Union, to the effect that ordinances of secession, with consequent reorganization of State governments, did not in any way affect them as States, and therefore as component parts of the American Union. (Thorington v. Smith, 1868, 8 Wall. 1; Keith v. Clark, 1878, 97 U. S. 454; The Sapphire, 1870, 11 Wall. 164.) In this last case it was held that a suit brought by the Emperor Napoleon III did not abate upon his deposition, but that the Republic was substituted as of right in the proceeding. The court says: The reigning sovereign represents the national sovereignty, and that sovereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euryale, not as an individual, but as sovereign of France. This is substantially averred in the libel. On his deposition the sovereignty does not change, but merely the person or persons in whom it resides. The foreign state is the true and real owner of its public vessels of war. The reigning emperor, or national assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our Government is competent to carry on a suit already commenced and receive the fruits of it. A deed to or treaty with a sovereign as such inures to his successor in the government of the country. If a substitution of names is necessary or proper it is a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of proceeding. No allegation has been made that any change in the real and substantial ownership of the Euryale has occurred by the recent devolution of the sovereign power. The vessel has always belonged and still belongs to the French nation. THE NEW JAPANESE PENAL CODE AND ITS DOCTRINE OF EXTRATERRITORIAL JURISDICTION The Honorable Charles Sumner Lobingier, judge of the Court of First Instance of the Philippine Islands, has called the attention of the JOURNAL to this question, and as his views on the subject are likely to be of interest, the brief article is set forth in his own language without comment: The Japanese Diet has recently enacted a new penal code. It has not (or at least had not at the time of the writer's recent visit to Japan) been formally promulgated, but that step awaits merely the passage of a new code of criminal procedure and a temporary code of that character is expected to be passed at the approaching session of the Diet. The first modern criminal code of Japan was enacted in 1880 and promulgated in 1882, having been framed by a French jurist. 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. 2 Section 3 of the instrument provides: " This law also applies to foreigners who have committed offenses mentioned in the preceding paragraph 3 against Japanese subjects outside the Empire. 3 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: 64 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." 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. 8 Id., 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 incon venience and injustice in many cases, it is a matter in which no other govern ment 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 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 or It seems clear, therefore, that whatever may be the attitude of the European powers toward this article of the new code, our own Govern. ment could not concede to another the right to punish an American citizen for an alleged offense committed in our own territory. code But the provision above quoted is not the only one in the new 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 pun ishment for the same act [in Japan]. If, however, the offender has already undergone the punishment to which he was sentenced in a foreign country. of any portion thereof, the court may either reduce the penalty or remit the execu tion 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 • Snow, Cases on International Law, pp. 173-174. |