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has worked some detriment. In the opinion of the Court, however, the withdrawal of water in Colorado is not excessive, and the detriment resulting in Kansas is not sufficiently extensive to overbalance the widespread benefits in Colorado. The Court holds, therefore,

that equality of right and equity between the two States forbids any interference with the present withdrawal of the water in Colorado for the purpose of irrigation.

Recognizing, however, that the equities might change with changed conditions and that some readjustment may be necessary in the future, the Court says in conclusion:

At the same time it is obvious that if the depletion of the waters of the river by Colorado continues to increase there will come a time when Kansas may justly say that there is no longer an equitable division of benefits and may rightfully call for relief against the action of Colorado, its corporations and citizens in appropriating the waters of the Arkansas for irrigation purposes.

The bill is dismissed, therefore, but

without prejudice to the right of the plaintiff to institute new proceedings whenever it shall appear that through a material increase in the depletion of the waters of the Arkansas by Colorado, its corporations or citizens, the substantial interests of Kansas are being injured to the extent of destroying the equitable apportionment of benefits between the two States resulting from the flow of the


Not the least of the advantages of a permanent court of arbitration is its ability, as here illustrated, to leave open any questions depending upon future developments and to readjust from time to time, as circumstances may require, the rights of the parties.


On the seventh of last April, in the City of Mexico, General Barillas, a distinguished citizen of Guatemala, formerly President of that State, was assassinated by one of his own countrymen. The wanton taking of human life is always a distressing thing, and the stealth and cowardice which in this case attended the act, heightened the sense of outrage against those who were parties to the crime. When, therefore, it was found that the murder of General Barillas was for political reasons and possibly at the instigation of high officials of his own government, the Mexican Government was greatly aroused, and consequences more serious than the mere punishment of the assassins for a time were threatened.

An investigation of the tragedy by the Mexican authorities led to the arrest of two young Guatemalan desperadoes who had come to the City of Mexico some time previously with the intent to murder Gen. Barillas. It seems to have been understood between them that the one who had the first opportunity should kill him and both have, therefore, been regarded as equally guilty, although the actual killing was done by only one of them. Upon their examination after the murder, the suspicion was developed that they were the paid instruments of certain persons high in authority in the Republic of Guatemala and that the object was to rid one of the factions in that State of a political enemy.

It was represented by the prisoners that their political friends would shield them from the consequences of their crime, in addition to compensating them for it. Two persons were prominently mentioned by them as the principal instigators of the deed, one of whom stood high in Guatemalean official life, and the other held an important local office under the Government. It was determined by Mexico to request the extradition of these two officials; the former upon the charge of complicity in the murder and the latter as a witness for the purpose of securing his testimony at the former's trial. A demand for extradition. was made by Mexico upon Guatemala and refused. Suspension of diplomatic relations between the two countries became imminent and the public press freely predicted war as a result of the failure to comply with Mexico's demands.

It is chiefly due to the pacific and sagacious policy of the great statesman at the head of the Mexican Government that a more serious issue was averted. To what extent the influence of the United States Government was effective toward a peaceful solution of the question may perhaps never be fully ascertained, but that it was used to good effect there seems to be no reason to doubt.

The crux of the diplomatic discussion between the two countries lies in the Mexican demand for the extradition of the alleged instigators of the crime. Article I of the treaty1 of extradition in force between Mexico and Guatemala provides that:

The Mexican Government and that of Guatemala engage to deliver up to each other, at the request which one of the two Governments may make to the other, with the sole exception of its own subjects, those persons accused or convicted by the competent authorities of the country in which the offence may be committed, as authors or accomplices of the crimes and offences enumerated in Article II of this Convention, who shall be found within the territory of the


1 Reprinted in the Supplement of this number of the Journal, p. 284.

other Contracting State. Nevertheless, when the crime or offence which may give rise to the requisition for extradition shall have been committed without the territory of the two Contracting Parties, such requisition may be acted upon, provided that the laws of the country applied to authorize the prosecution of such offences committed without its territory.

The Government of Guatemala based its refusal to surrender the official who had been charged with complicity in the murder upon the ground that Article I of the treaty excepted citizens from surrender, and also upon the secondary ground that under the Guatemalan constitution on account of his high official position he was first entitled to a preliminary examination by the National Legislative Assembly of Guatemala. in order to determine whether or not there were grounds for bringing an action against him.

The attitude of the Mexican Government on the other hand, was that the purpose for which the extradition was desired was to afford an opportunity to Guatemala to vindicate herself of the charges made by the two paid assassins against one, at least, of its prominent officers. Mexico had therefore requested the provisional arrest of this official until such time as the proofs in support of the demand for extradition could be presented. It was claimed that Guatemala misinterpreted the spirit of Article I of the extradition treaty, which did not contemplate that neither country should surrender its citizens, but intended that the question of surrender in such cases should be optional, and therefore this. opportunity was given to the Government of Guatemala of clearing itself from the suspicion of complicity in the outrage.

The Government of Guatemala having persisted in its refusal to grant the surrender, President Diaz did not press his demand further; but in order that it might be plainly understood that the action of Guatemala was resented, it was determined that the Mexican Minister at Guatemala City, who is accredited to all of the Central American Governments, should change his residence to San Salvador, which was accordingly done. This move did not involve the breaking off of diplomatic relations between Mexico and Guatemala, but indicated the seriousness of the situation. Concerning the case against the principal official involved, the Mexican Government has stated its willingness to rest with the publication of the criminal proceedings against the assassins and some portions of the correspondence, which, it is intimated, will sufficiently show his connection with the crime, without making any comments thereon which might tend to increase the strained relations between the two governments. This publication apparently has not yet been made.

Apart from the heinousness of the principal crime and its possible antecedents, an interesting question of extradition law is presented which appears to have been untouched by the disputants, and that is, whether the idea of extradition does not presuppose an escape from one jurisdiction and a place of refuge in another. The theory of extradition would seem to imply that a person has committed a crime in one country and fled to another to escape punishment, the object of a treaty being to secure the return of such fugitive for trial to the jurisdiction in which the crime was committed. Three elements must be present: a crime committed outside of the country of refuge; a flight; and a surrender for punishment. In this case it cannot be claimed that there was any flight on the part of the alleged instigators of the crime. They have always remained within the jurisdiction of Guatemala.

The principle to which reference has just been made, it is not unreasonable to assume, is one which should prevail in all countries, regardless of whether their legal system is founded upon the Roman law or the common law. As between Mexico and Guatemala, however, specific provision as to this point is made in Article I of the treaty. This article provides in its opening sentence for the surrender of persons accused or convicted of crime in "the country in which the offence may be committed" and it is additionally stipulated in the same article that surrender shall also be made for crimes "which shall have been committed without the territory of the two contracting parties" if the laws of the surrendering government "authorize the prosecution of such offences committed without its territory." It is very clear, then, that Mexico under this treaty may make demand upon Guatemala for all treaty offences committed in Mexico, and also for all such offences committed in third countries, provided that the offender might be punishable therefor in Guatemala under the Guatemalan legal system. But no right is here. granted to obtain the surrender of offenders whose crime has been committed, if at all, within the territory of the surrendering government. The obvious implication, therefore, would be that neither of the contracting parties agreed to surrender for crimes committed within its own territory. If this view be correct, the first question to be considered in the present case is whether the offence giving rise to Mexico's demand for extradition can be considered in any aspect to have been perpetrated within the jurisdiction of Mexico; for if it be conceded that the offence was commited within Guatemalan territory then extradition could not be had.

It is not claimed that either of the Guatemalan officials whose extra

dition was demanded was actually present in Mexico when the alleged instigation to the crime occurred. There remains then only the question of their constructive presence in that country, and a constructive flight to Guatemala. There have been few decisions by the courts of our States which furnish a close parallel, but they maintain the view that, in the absence of a statute changing the common-law principle, where an accomplice in one State incites to the commission of a crime in another, he commits no offence which is punishable under the laws of the latter State. As clear an enunciation of this principle as has been made in our decisions appears in the case of State v. Wyckoff (2 Vroom 65), where the Supreme Court of New Jersey held that an accessory before the fact, whose acts of procurement have been done in the jurisdiction of another State, could not be indicted and punished for such procurement in New Jersey, because the offence had not been committed within the jurisdiction of that State. The opinion in this case reviewed all of the authorities upon the question, and the court stated that it was in accord with such authorities as well as with the principles of reason.

There would seem to be a sufficient distinction between this case and such cases as United States v. Davis (2 Sumner 482); Commonwealth v. Blanding (3 Pick. Mass. 304), and other later cases, which settle the principle that a crime is punishable in the jurisdiction in which it is consummated, or in which it takes effect. Whatever crime was committed by the instigators in this case was committed by them as accessories before the fact. It is familiar common-law doctrine that the crime of the accessory is distinct from that of the principal, so that the locus of its consummation is not identical with that of the principal crime.

Upon the analogy of the New Jersey case, it would follow that extradition does not lie for the act of the accessory committed in the foreign jurisdiction.

The request for the attendance as a witness of the other of the two Guatemalan officials implicated by the Mexican Government was based upon Article XVI of their extradition treaty. There is no obligation under this clause for the compulsory attendance of witnesses, as will be seen from an examination of this article:

When in a non-political criminal case the personal appearance of a witness is needed, the Government of the country where the latter is residing shall request him to appear where he is summoned. If the witness consents to proceed, he shall be at once furnished with the passport that may be necessary, and his traveling and living expenses shall be given to him by the country in

which the examination is to take place.

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