No. 26.
Mr. Delfosse to Mr. Fish.


Mr. Secretary of State: The ill-success of all the efforts recently made in a notable case to bring to justice an individual who has been accused of the threefold crime of assassination, arson, and robbery in Belgium, and has taken refuge in the United States, the impunity which is definitely assured to him, are grave and regrettable consequences the absence of an extradition treaty between the two countries, and have rendered yet stronger the desire, formerly evinced by the government of the King, to arrive at a conclusive arrangement upon this subject.

The negotiations initiated for this purpose in 1868 failed because of the clause introduced by Belgium, stipulating for the two countries the reciprocal exception of their natives, (nationaux.)

The Belgium negotiator showed that he was imperatively bound, upon this point, by the absolute provisions of Belgium law, which forbids ever delivering up a Belgian, and that the national sentiment, according in this respect with nearly all the countries on the continent of Europe, did not allow any allusion as to the possibility of a modification of that law; so much the more, he represented, that in refusing to deliver up a Belgian he was still not wrested from justice, for the rights of justice remained protected in cheer full exercise by the law of 1836, which authorizes the prosecution in Belgium of a Belgian who has committed a crime in a foreign country, if he is there, (in Belgium.)

The United States, on their side, rejected the clause of exception in the interests of justice, inasmuch as the fundamental law not permitting the prosecution before the tribunals of the United States of persons accused of crimes committed abroad, it would result from the clause of exception that Americans accused of crimes committed in Belgium would escape from justice on returning to the United States. But the fundamental law does not seem to have such an absolute intent, according to the tenor of a decision recently rendered by the United States circuit court of the southern district of New York. In fact, this court cites a number of laws and special statutes which precisely sanction the principle of the jurisdiction of American courts over crimes committed in foreign countries. Besides, however this may be, the insertion of the clause of exception in the treaty which Belgium desires, is evidently not at all incompatible in itself with the fundamental law, for this clause exists in a large number of treaties concluded by the United States. According to the enumeration which appears in the decision above mentioned of the United States circuit court of New York, out of seventeen treaties of extradition seven contain it, and the others do not contain any expressed reservation to the contrary on this point. And it is pertinent to remark here that at the very time when Belgium saw its negotiations upon this question fail, the United States concluded their treaty of naturalization with the North German Confederation, in which, far from seizing the occasion to return to a principle from which they declared to us they never would depart, they, on the contrary, confirmed and sanctioned anew the exception respecting natives in extending to all the states forming a part of that Confederation the convention of June 16,1852, between the United States and Prussia, of [Page 84] which Article III states: “Neither of the two contracting parties shall be bound to deliver up its own citizens or subjects.”

Belgium and other countries, also Germany, Italy, Denmark, a short time ago concluded extradition treaties, in which the clause excepting natives appears, with Great Britain, of which the institutions of justice have so much analogy with those of the United States, and which is willing, like them, to deliver up her subjects.

In short, the Belgian law, on the one side, absolutely prohibits the extradition of a Belgian. On the other side, a treaty containing the clause of exception respecting natives is not impossible before the terms of the law of the United States.

In this state of affairs, which leaves it a liberty of action that the government of Belgium does not possess, will the Government of the United States maintain inflexibly an objection which prevents every arrangement respecting extradition between the two countries to the great detriment of the respectable interests which would obtain from it the protection and security which they have the right to claim? And would the real interests of justice be better consulted by this regrettable effect of a doctrine which, with a view of obtaining eventually for it jurisdiction over a certain category of cases, (which will remain, according to the best founded probabilities, comparatively rare,) would voluntarily and indefinitely leave it in the state of absolute impotence in which she now finds herself, against all the criminals that have taken refuge from one country in the other?

At all events, the government of the King believes that it would fail in an imperative duty if it neglected to make a fresh effort to effect between Belgium and the United States the conclusion of a convention of extradition containing at least what is possible within the limits of what legislation in force in the two countries, respectively, permits and prohibits, and I have consequently been charged, Mr. Secretary of State, in presenting to you the preceding considerations, to make immediate overtures to that end. The government of the King is pleased to hope that they will be so much the better received as the recent impossibility of delivering up to Belgium the individual who is there accused at once of assassination, arson, and robbery has been the subject of deep regret expressed by the Federal Government, which surely shares with the government of the King a sincere desire to put an end, by every means practicable, to the absolute impunity which at this moment reigns—an immoral and dangerous encouragement to crime in the two countries.

I have, &c.,