No. 95.
Mr. Evarts
to Mr. Dichman.
Washington, November 12, 1878.
Sir: I inclose herewith for your information copy of correspondence had with the minister of the interior and of foreign relations of the United States of Colombia, prior to the reinstatement of the United States legation at Bogotá, touching the release, by the order of the Colombia Government, of one C. G. Scrafford, who, being accused of the commission of a forgery in the State of Kansas, and having fled to Peru, was extradited from that country in pursuance of the existing treaty, and was being conveyed to the United States, by way of the Isthmus of [Page 152] Panama, in charge of a duly-commissioned officer of the United States at the time of the release complained of.
In the note addressed to the Colombia foreign secretary on the 22d of April last, regret was expressed that the governor of Panama should have taken the step he did in this matter; a step which, under the circumstances, was regarded as at variance not only with international courtesy, but also with the spirit of the treaty of 1846 between the United States and New Granada, now in force with Colombia, and attention was called to the thirty-fifth article of that instrument, providing for the guaranteed neutrality of the isthmus and the absolute right of way across the same for all persons either in the service of this government or subject to its orders.
This government has given careful consideration to the note of his excellency the secretary of the interior and of foreign relations of the 1st of July ultimo, but, even after according to his excellency’s views all the weight due to their elevated character and their foundation upon the constitutional laws of the Republic of Colombia, it is still felt that there is good ground for regret that so rigid and literal an interpretation of those laws should have been followed in the case in question, in opposition to the general practice and comity of nations.
His excellency cannot be unaware that the conveyance of an extradited criminal from the country whence he is surrendered to that which reclaims him, across the territory of an intervening state, is a common occurrence, notwithstanding that no offense has been committed and no legal formality of arrest followed in the jurisdiction of the state through which he may pass, and that this is done not in pursuance of the stipulations of treaties or the provisions of domestic law, but as a recognition of the just effect of the laws and treaties of foreign states in matters within their competence, which recognition pertains to the sovereignty of an independent state and is exercised as an act of international comity.
It is not perceived that his excellency’s citation of the 10th article of the federal constitution prescribing the formalities of interstate extradition within the territory of the union has any determinate bearing on the present question, inasmuch as it is in no case possible for the arrest of a criminal in a third country to conform to the guarantees of individual rights enumerated in the Colombian constitution.
The article cited has express reference only to offenses committed and arrests made within the territory of the United States of Colombia.
Neither is it evident that his excellency’s justification of the release of Scrafford by the non-existence of a treaty of extradition between the United States of America and the United States of Colombia is of the essence of the question, especially as his excellency proceeds to assert that the case in point was not one “of the extradition of an individual residing in the territory of Colombia, but of permitting the conveyance across the isthmus of a foreigner who had been arrested according to foreign laws.”
It is hoped that the Government of Colombia, upon reconsideration of this point, will not insist upon a construction at variance with usage as well as calculated to thwart the ends of justice by securing immunity to a criminal through a legal technicality.
On the other hand, in the interest of a full understanding of the matter on its merits, this government is prepared to admit frankly that in conveying the extradited prisoner across the territory of Colombia without the previous consent of the government having been asked and given, it prejudiced any right it might have had to seek the exemption [Page 153] of the prisoner from the operation of the local law within the jurisdiction of which he was brought under the stress of circumstances.
Had such consent been asked, however, it is conceived that the Republic of Colombia would have felt constrained to grant it in the same manner as is done in like cases by other states whose constitutional codes are as mindful of individual rights as is that of Colombia, independently of the peculiar conditions under which official transit across the isthmus rests by reason of the neutrality and freedom guaranteed by treaty.
You will represent these views to the secretary of the interior and for foreign affairs, and invite his earnest attention thereto, to the end that a common accord may be reached on this point, in the interest of justice and in conformity with international usage. You may say to him that the subject is regarded as one of especial importance, in view of the frequency with which cases of extradition arise between this country and those South American countries whose direct channel of communication with this, lies across the Isthmus of Panama.
In a case which has recently occurred it has been deemed necessary, in order to avoid a failure of justice like that in Scrafford’s case, to dispatch a national vessel to the Pacific coast of South America to bring direct to a port of the United States a fugitive from justice whose extradition has been asked.
Due heed has been given to the suggestion of the secretary of foreign affairs looking to the conclusion of a treaty of extradition between the United States and Colombia. In pursuance of its general policy of extending its international relations for the common good, this government has neglected no fitting opportunity of late years to enter into conventions with foreign powers for the mutual extradition of fugitives from justice.
If such a treaty with the United States of Colombia will operate to prevent the recurrence of a case like that of Scrafford’s release in transitu, there is no objection to its conclusion. It is necessary, however, before proceeding further in the matter, that the two governments shall be in accord on this point. You will accordingly confer with his excellency on this subject and ascertain his precise views.
In order that you may acquaint him with the character of such a treaty as would be acceptable to this government, I inclose herewith copies of several recent treaties of extradition with foreign powers. If one be entered into with Colombia, it should, if possible, be so formed as to permit of the extradition of Scrafford, should he still be within Colombian jurisdiction when such treaty may take effect.
The general principle of opposition to an ex post faeto act is not regarded as applicable in this instance, since the criminal character of the act for which extradition is sought does not flow from the treaty of extradition, but from an antecedent criminal law. This principle is recognized by foreign legislation, as, for instance, in France. It is not to be forgotten that Scrafford is not a fugitive in Colombia territory through his own conscient act, but owes his liberation there and consequent present immunity to the act of the government of the country, and it may well be urged that the Government of the United States has a valid claim to the consideration of that of Colombia in this regard.
You will inform the Department at as early a day as may be practicable of the result of your conference with the secretary of foreign affairs, and should there be a satisfactory prospect of the conclusion of an acceptable treaty of extradition between the two countries, the necessary full power to conclude and sign the same will be sent to you.
I am, &c.,