No. 503.
Mr. Fish
to Mr. Westenberg.
Washington, November 12, 1873.
Sir: I have the honor to acknowledge the reception of your note of the 5th instant, making inquiries respecting a certain stipulation supposed to have been inserted in several extradition treaties which have been recently concluded by this Government.
It is believed that you are under a misapprehension iu supposing that the provision, as cited in your note, has been inserted in many of the treaties of extradition which this Government has entered into with other powers, or that it has been inserted in any of those recently entered into. I am under the impression that it is to be found in only three of the treaties of extradition concluded by the United States, and in none concluded within the last six years. No question has been raised by either of the governments with whom treaties have been entered into containing the stipulation, cited in your note, as to its import. I abstain, therefore, from speculating in the abstract upon provisions of detail in treaties of extradition existing between the United States and other countries. It will, as I hope, meet the object of your inquiry [Page 786] on this point to say that, in every treaty of extradition, the United States insists that it can be required to surrender a fugitive criminal only upon such evidence of criminality as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial if the crime had there been committed.
The second question which you propose is, what may have been the reason why the stipulation which you cite, and which you erroneously think is found in all extradition treaties of this Government concluded since August 21, 1857, was not inserted in the projected treaty signed, but not exchanged, between the Netherlands and the United States in 1857. Governor Marcy and General Cass, who were, pending the negotiations on this question, the Secretaries of State, and under whose directions they were conducted, have been dead for several years, and it does not appear from the correspondence in this Department that the provision cited by you was at any time under consideration.
The negotiations appear to have been conducted at the Hague; and unless the records of the ministry there, or possibly the recollection of the distinguished gentlemen who conducted the negotiations on the part of the Netherlands, (if Mr. Van Hall be still living,) can furnish the answer to the question why the stipulation to which they did agree was introduced instead of one which does not appear to have been proposed, I shall have to regret the inability of this Government to aid in the solution of the question which you raise.
In reply to your third question, “Whether there exists in the United States any uniform criminal procedure, that is to say, whether the same laws and rules are in force in relation to criminal procedure in all the States, or whether the laws concerning such procedure are different in the different States,” I have to say that the criminal code of the United States applies only to offenses defined by the General Government, or committed within its exclusive jurisdiction, or upon the high seas, or some navigable water, and that each State establishes and regulates its own criminal procedure, as well with respect to the definitions of crimes as to the mode of procedure against criminals and the manner and extent of punishment.
Accept, &c.,