Mr. Dickinson to Mr. Seward
Sir: I have the honor to acknowledge the receipt of your communications dated, respectively, on the 13th and 15th instant, enclosing certain questions in reference to the practical working of the extradition treaty between France and the United States, with the request that I would endeavor to have the same answered.
I have carefully considered the subject referred to, and have conferred with the United States commissioners in this district, who have most frequently had occasion to exercise their magisterial powers for the purpose of returning criminals under the various extradition treaties with foreign countries, and have examined such adjudications on the questions at issue as are reported in the books. The following is the result of my inquiries:
A simple mandat d’arret, or capias, issued by a French juge de paix, does not entitle the French government to the extradition from this country of a person accused of a crime provided for by the treaty.
The proceedings which must be taken here to enable the French authorities to obtain the extradition of such a person, are:
1. A complaint made under oath or affirmation, before an officer vested with the requisite authority, charging such person with having committed within the jurisdiction of the French [Page 228] government a crime enumerated in the treaty. On this complaint a warrant is issued for the apprehension of the accused.
2. On the accused being brought before the magistrate, such evidence must be presented as would be deemed sufficient by that officer to commit him for trial if the crime had been committed here.
This evidence may consist of parol testimony or copies of the depositions and other papers, upon which an original warrant may have been granted in France, legally authenticated, so as to entitle them to be received for similar purposes in that country.
3. The parol evidence of a witness who can identify the accused. Written depositions may be admitted in evidence, without parol evidence, where their authentication is attested, as provided by the act of Congress approved June 22, 1860. (12 Stat at Large, p. 84, sec.1.)
There is nothing, however, in the statute to prevent their attestation by parol.
The commissioners whom I have consulted do not consider that the extradition treaty with France would warrant them in giving up escaped convicts who had been convicted either after trial or par contumace, merely, on the record of their conviction. They would require the same evidence in such cases as if the accused had not been convicted.
In this view of the law I concur with the commissioners, nor would I deem it good policy for the government to include the return of such persons within the provisions of an extradition treaty on any other basis.
The return of person whose presence for other reasons might be desired in a foreign country, could be secured with much ease if the record of a conviction par contumace was sufficient for that purpose.
I have the honor to be, sir, your most obedient servant,
Hon. William H. Seward, Secretary of State.