No. 149.
Mr. Davis
to Mr. Stumm.
Washington, July 25, 1873.
Sir.: In reply to the application made by you on the 2d instant, in behalf of the government of Germany, for the extradition, under the treaty of July 16, 1852, between the United States of America and Prussia and other states of the Germanic Confederation, of Stupp alias Carl Vogt, an alleged criminal, I have the honor to state that the case has received the serious consideration of this Government, and has been submitted to the Department of Justice for the opinion of the legal advisers of the Government. I have also felt it due to the importance of the question, and a proper act of courtesy to your government, to submit all the papers to Mr. Fish, and to take his instructions regarding the disposition of the case.
It appears that the crimes of which Stupp alias Vogt is accused were committed in Brussels, in the kingdom of Belgium, without the territory and outside of the jurisdiction of the states parties to the treaty.
The preamble of the treaty declares its object to be “the better administration of justice and the prevention of crime within the territories and jurisdiction of the parties respectively.” It does not propose to regulate the administration of justice, or the prevention of crime in [Page 301] other territories, or within the jurisdiction of other states, than those parties to the treaty.
The first article of the treaty provides for the delivery up to justice, by the parties respectively to the treaty, of persons charged with certain enumerated crimes “committed within the jurisdiction of either party.”
The crimes charged against Stupp alias Vogt are such as are enumerated in the treaty, and had they been committed within the territories and jurisdiction of either of the states parties to the treaty, there would be no hesitancy or delay on the part of this Government in the delivery of the alleged criminal. They were not, however, committed within the territories or jurisdiction of Germany, but, as I have already noted, within the territory and jurisdiction of Belgium, with which state no treaty of extradition with the United States exists.
The opinion of the Law Department of the Government, therefore, is that the case of Stupp alias Vogt is one not within the contemplation and provisions of the treaty.
The heinous nature of the crimes charged against Vogt has inclined this Government to seek some construction of the treaty which might justify the surrender of the alleged criminal, for the purpose of subjecting him to an impartial trial, and to the punishment which, if guilty, he so richly merits. But it is forced to the conclusion that the treaty does not contemplate crimes committed elsewhere than within the territorial and exclusive jurisdiction of the parties thereto, and does not provide for the surrender of persons charged with crimes committed outside of such jurisdiction.
Anxious as is this Government at all times to aid in the administration of justice and the prevention of crime, and desirous as it has ever shown itself to be to comply with the wishes of the government which you so ably represent, it is with regret that it finds itself constrained by the terms of the treaty in this case, and that it cannot grant the warrant of surrender which is asked.
I avail myself, &c.
Acting Secretary.