No. 349.
Mr. Foster to Mr. Evarts.

No. 741.]

Sir: A case of considerable importance has recently been discussed and decided in the Mexican federal supreme court, involving the interpretation and enforcement of the extradition treaty of 1861 between the United States and Mexico. During the year 1877 the authorities of Texas applied to the authorities of the State of Tamaulipas, Mexico, for the extradition of two persons, Domingaez and Barrera, charged with murder. They were arrested and their delivery ordered by the federal executive, through the department of war. But the prisoners applied to the district judge of Matamoros for amparo or protection, a proceeding somewhat similar to our writ of habeas corpus, which application the judge sustained, a decision based upon the ground that, as Mexican citizens, extradition would be a violation of the individual guarantees of the federal constitution. An appeal was taken by the prosecuting attorney from this decision, and the case was thus brought before the federal supreme court.

After a lengthy discussion of the case, and a consideration of all the constitutional, international, and political questions, either involved or introduced, in which almost all the magistrates of the court participated, the decision of the district judge of Matamoros was reversed, and the court decided, by a vote of 9 to 5, that the individual guarantees of the Mexican constitution would not be violated by the extradition of the criminals. It appears from the discussion that the Mexican citizenship of the prisoners was alleged but not proven.

In order that you may know the points discussed by the court, I inclose herewith the opinion pronounced by Magistrate Ramirez, which presents the views of the minority of the court on the constitutional questions involved; also an extract from the opinion of Magistrate Bautista, of the minority, to show to what extent the unsettled relations of the two countries affect even the discussions of the highest judicial tribunal of the nation; and the opinion of the president of the court, Señor Vallarta, who was secretary of foreign affairs at the time the extradition in question was ordered, and who sustains at considerable length and with ability the constitutionality and propriety of that act.

I am, &c.,

JOHN W. FOSTER.
[Inclosure 1 in No. 741.—Translation.]

Opinions of magistrates of Mexican supreme court on case of extradition to American authorities.

opinion of magistrate ramirez.

Two individuals, natives of Mexico, and who, it is said, have resided more than four years in the United States, have been demanded by the authorities of Texas, being accused of having committed in that foreign territory a horrible murder. The presumed criminals have asked protection (amparo), because, not being included in the laws of extradition, they should neither be delivered to a foreign authority nor can they be retained as prisoners without a scandalous violation of their individual guarantees.

The accused plead in their favor the last part of article 6 of our treaty of extradition with the United States, which says: “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this treaty.”

[Page 561]

They also state that their Mexican origin being unquestionable, it has not been possible for them to lose their nationality except in accordance with the convention celebrated between Mexico and the United States, which declares: “Citizens of the Mexican Republic, who have become citizens of the United States and who have resided uninterruptedly in the territory of the United States for five years, shall be held by the Republic of Mexico as citizens of the United States and shall be treated as such.” From which the interested parties infer that in order to demand them the authorities of Texas should have proved their naturalization in the United States, and uninterrupted residence there for five years; and the demand not being based upon these proofs, they are in the full enjoyment of their rights as such Mexican citizens, and may ask protection for their violated guarantees. Certain Mexican authorities are not favorable to the present criminals, and to the pleas of the latter they reply: 1st, that the complainants should prove their Mexican nationality, or, at least, that they are not citizens of the United States, if the evidence of the declaration of a Mexican officer exists against them to the effect that they have resided more than four years in the United States; and, 2d, that by the part quoted of article 6 the Mexican Government is authorized to deliver up its own citizens when it thinks proper.

Such is the condition of the question submitted by appeal to the resolution of the supreme court of justice. In so far as I am concerned, I will state in a few words the grounds upon which I cast my vote.

It pertains to the authorities of Texas to accompany their demand with proof that the supposed criminals are North American citizens, it being presumed that upon this ground they are considered subject to the jurisdiction of those authorities; these proofs do not exists All else which appears in pro or con in the proceeding is neither sufficient or necessary. Thus it is that the justice of the Union has to depart from this incontestable fact. The complainants, natives of Mexico, have not lost their nationality, and they cannot be considered as foreigners until the contrary is proved in accordance with the convention of July 10, 1868.

I think also that while our federal constitution and the extradition treaty of December 11, 1861, are in force, the executive power cannot consent to the extradition of any Mexican citizen.

By article 15 of the federal constitution, neither treaties nor convetinons can be celebrated which alter the guarantees and the rights of man and the citizen. For the same reason, if article 6 of the convention between Mexico and the United States should be doubtful, it could never be interpreted to mean that by the same article the Mexican Executive was authorized to deliver Mexican citizens or not as it thought proper. This discretional faculty would be contrary to all the individual guarantees, and especially to those specified in articles 13 and 19, if the executive and its agents could arbitrarily submit citizens to an exclusive law, to a special tribunal, and detain them indefinitely in prison.

Cases of extradition are exceptional in the law of nations, and for this reason they should be restricted scrupulously to the terms of the treaties; in the latter a government is under no obligations except in so far as it appears positively from the law under obligations. In the case under consideration, the act of delivering a citizen to a foreign nation is so very delicate that the extradition may be null, even after its consummation. Billot says, “Error is cause for nullity when it affects certain personal attributes which make the individual claiming a personal guarantee against extradition. Thus it is a rule of conventional law that natives are not subject to extradition. * * * * Let us suppose that the state upon which the requisition is made authorizes the delivery of the individual claimed, and that afterward it discovers that this individual is one of its citizens. * * * The error then affects the important rights of the object of the contract; this is nullifiable, and the government upon which the demand is made has the right to demand the restitution of the individual delivered.”

Bluntschli, in his codified international law, article 399, expresses himself in these terms: “A state is never obliged to extradite its own citizens or to deliver them to the state in whose territory they have committed a crime.”

Positive law, which is that which operates in treaties of extradition, likewise sanctions this principle. “Citizens are not subject to extradition.” Such noteworthy conformity authorizes us to decide that the Mexican Government lacks the faculty to deliver our citizens to the United States.

I am not ignorant of the fact that certain writers desire that natives be made subject to the laws of extradition, but their doctrines have only amounted to private opinions, and much less are they considered as laws; the reasons upon which they are based maybe considered by legislators upon celebrating a treaty; but when in the latter common principles have been departed from, there is no doctrine which may supplant the obligatory causes of the convention celebrated with the United States, and much less should our individual guarantees be sacrificed to the opinions of certain writers.

Those of the complainants are at present trampled under foot, and they have been placed without the law, and for this reason I protect them.

[Page 562]
[Inclosure 2 in No. 741.—Translation.]

opinion of magistrate bautista.

[Extract.]

* * * * * * *

As a last resort in the discussion, the majority of the magistrates not being able to evade the truth of the facts and distort the law, they appeal to the nightmare of the superiority of the North with respect to us, and to the necessity under which the Mexican Government rests to flatter that of the United States, and give it what it asks in order not to interrupt our relations with that nation which can absorb us at one stroke. Gentlemen, the rôle acted by a government in delivering its own citizens through fear, when there is no obligation, is unworthy and even sad; and, above all, if the executive wishes to do that which Mexico is not under obligations to do by the treaty, let it do so at a proper time, disposing of what it can dispose of, but always respecting the liberty and life of man, whose rights are the basis and object of social institutions.

Lastly, it is said that the morals of the nation suffer by leaving those criminals at liberty, owing to the impunity of their crimes, supposing that Mexico cannot try them and punish them for crimes committed beyond her territory, nor likewise the United States in case they are not delivered to its authorities. It should be considered that it is not known yet by legal methods whether such crimes have been committed, and by whom, when it is acknowledged that the measures for extradition are insufficient; but supposing that they were; this impunity, so startling to certain magistrates, is accepted and consented to by the contracting parties from the moment in which they stipulated that neither of the two nations was under obligations to deliver up its own citizens; in addition to which, as has been well said, the crimes committed in a foreign country may, in accordance with the code, be tried and punished in Mexico.

The speaker does not belong to the school of frightened men who hesitate in the fulfillment of their duties and of our constitutional precepts from reasons of convenience or morality; because he believes that our fundamental character is above everything, and that nothing but respect for its precepts and the exact fulfillment of its provisions will save the fate of the nationality of Mexico, as it has saved it a thousand times; and above all, between the constitution and its guarantees, and the reasons of convenience, I decide for the first, and I will never act the sad rôle of delivering Mexicans to be tried by a foreign country, when there is no obligation to do so, debasing in this way the national dignity and decorum. In consequence, I will vote for the proposition of citizen Blanco.

[Inclosure 3 with No. 741.—Translation.]

opinion of chief-justice vallarta.

I desire also, like the other magistrates, to give the foundations of my vote by stating, although in compendium, the reasons which I have deduced in the discussion of this question. It has been considered under different aspects, and even matters irrelevant to the present judgment of amparo have been brought into the debate, matters in regard to which I consider it my duty to speak in defense of my opinions. Reviewing, then, what I have said in this long discussion, I will state the opinions which I have expressed in regard to the different subjects discussed.

1st. The complainants, Dominguez and Barrera, have only asked for amparo upon the ground that they consider articles 16, 18, 19, and 20 of the constitution violated in their persons. Are these articles applicable to cases of extradition? I do not think so, because they refer to the criminal proceedings which should be instituted in the republic for crimes committed within the limits of its territorial jurisdiction, and the crimes which give rise to extradition are those committed in foreign territory, where the national jurisdiction cannot reach. The law of nations has established the rules which limit the exercise of the sovereignty of a country, and constitutional law should be understood as subordinate to those rules, because no constitution can arbitrarily give to itself exterritorial effects without putting itself in antagonism with the principles which guarantee the independence and sovereignty of nations, and provoking conflicts with that nation whose territorial jurisdiction is invaded. Our laws, also (article 186 of the penal code), deprive Mexican judges of jurisdiction in the cognizance of crimes committed in foreign territory.

Applying these principles to the present amparo, it is seen at once that, as our judges lack jurisdiction to take cognizance of the murder which it is said Dominguez and Barrera committed in the State of Texas, they can give no attention whatever to the jurisdiction specified in the constitutional articles. The judge of extradition of Matamoras [Page 563] is not the judge of the accused, and this sole reason is sufficient cause why, in accordance with the tenor of said article 20, that judge of extradition cannot take the preliminary declaration of the criminals, nor declare them prisoners, nor hear them in defense.

The absolute prohibition of article 19 has been strongly urged, to the effect that no detention shall exceed three days unless it be justified by a sentence of commitment, in order that it may be inferred from this that the cases of extradition are not beyond the force of that prohibition. I do not understand thus the constitutional article, because the sentence of commitment is an act of jurisdiction without any doubt whatever, so that such a sentence would be converted into a crime if a judge should pronounce it when he lacked jurisdiction, either owing to the nature of the case, treating, for example, of a legal act which a criminal judge can construe into a crime, or relating to the person, treating, for example, of the trial of a Russian for crimes committed in his country. Besides, if a judge should pronounce that sentence in cases of extradition, what course would he have to pursue afterwards? Would he pursue that specified by article 20 of the constitution to the extent of hearing the criminal in defense and condemning or acquitting him? But this would be monstrous, supposing it were so, that our judges could punish the criminals of all nations who do not violate our laws. Shall lie declare himself without jurisdiction to try the cases? This would be his own condemnation, inasmuch as without it he could not even pronounce the sentence of commitment. Shall he declare himself to be incompetent and deliver the criminal to the foreign authority? This would also be monstrous, inasmuch as the judicial power of a country cannot maintain that class of foreign relations; it would overthrow all the principles which regulate the relations between nations, and also those which fix the attributes of the executive and judicial powers, and those which determine the nature of extradition, &c.

And all these absurdities would be enacted in consequence of the violation of the principle that a judge has no jurisdiction even to decree a sentence of commitment against the criminal who has committed a crime in foreign territory.

This interpretation of the constitutional articles I found not only upon these reasons but upon the doctrines of publicists and upon the practices of civilized countries. The latter recognize the necessity for the detention of the accused in order to prevent his escape and make effective the object of the extradition treaties, and they maintain that such detention is not an act subject to common criminal regulations, but an international act governed by treaties.

Among civilized countries there is not one that does not fix distinct rules and longer periods for the detention of the accused in cases of extradition than for detention in cases of common criminal judgment, and this is well conceived, because it would be a burlesque upon the faith of treaties to claim that in the few hours during which the arrest should continue, a single case of extradition could be decided through diplomatic channels.

The American, English, and Belgian laws expressly lengthen the periods of provisional arrest in cases of extradition, making them much greater than in common detention in criminal cases; and let it be well noted that these countries are more jealous than any others of individual liberty. Among modern treaties which fix periods for the arrest, none establish a period of less than fourteen days, treating of border nations and those having rapid and easy communication by steam and telegraph; and such periods are extended to two, three, and six months, according to the distances and the difficulty of the communications.

2d. It has been sought to found this amparo upon article 15 of the constitution, it being alleged that the court should concede it in order to prevent the violation of that article of the constitution by the extradition in question. Viewing the latter from such standpoint, I think also that the amparo does not follow. I understand that that article does not prohibit other extraditions than those of political offenders and those in a condition of slavery. Respecting those prohibitions, I am of the opinion that there is no anti-constitutional extradition with respect to those criminals who may be the object of it, and that the representative of the sovereignty of Mexico may make treaties of extradition with such conditions as it thinks proper for the interests and decorum of the republic, and without other limitations than those specified in the constitutional article.

The argument which is made in regard to the second part of this article is absurd. If, in order not to alter the guarantees of the individual, the extradition of a criminal should be refused, with simply this, all extraditions would be prohibited, those of citizens and foreigners, and with it we would see the contradiction of one part of article 15 derogatory to that which immediately precedes it.

Another is the meaning which should be given to the second part; it prohibits the celebration of treaties which will nullify constitutional articles here in Mexico, which may deprive the inhabitants of the republic of the guarantees which the constitution concedes to them, treaties which may deprive us of the liberty of the press, of the transit without passports, &c. And that this is the meaning of the constitutional [Page 564] article, to prevent a treaty from nullifying the constitution, is proved by the reasons for the article, as shown in its discussion in the constituent congress.

3d. With respect to the proposition of the Citizen Magistrate Blanco, there has been much discussion in regard to who is the competent power for matters of extradition. I cannot agree that it is the judicial, but that it is and should always be the executive. The treaty of December 11, 1861, thus determines it expressly and specifically in its articles 1 and 4, where extradition is characterized as an international act, as a matter treated between two governments through diplomatic channels, and which the executive alone of each country has the faculty to determine. This treaty, far from considering the judges as competent in such matters, states that they cannot take cognizance of extradition except when they are duly authorized by the governor or military chief of the frontier States.

In the constitution I do not find a single word in support of such judicial jurisdiction, and I do find among the attributes of the executive the reasons upon which its jurisdiction in the matter is founded. If the executive has to conduct diplomatic negotiations and see to the fulfillment of the treaties, how could it do so if a judge should concede or refuse an extradition, according to his understanding of it? If the act of that judge should constitute the violation of a treaty, how could the President of the republic be responsible for that fault? If the judges should have such faculties, how could the President conduct diplomatic negotiation in matters of extradition?

This point, in addition to appearing so clear to me, is already in the practice of nations a principle in regard to which there is no dispute. It is true that there are countries, as for instance England and Belgium, in which the laws give more or less intervention to their judges in matters of extradition; but far from denying the competency of the executive power to decree the extradition, it is more fully affirmed, if possible, by the precepts of those laws which permit it to depart even from a judicial resolution favorable to extradition, in order to refuse it. In other countries, as in the United States, the judge does nothing more than to make the necessary investigation for the decision of the case, it being always the executive power which decides it, whether it be to concede or deny the extradition. I cannot, therefore, vote for this amparo, upon the ground that the department of war is incompetent to decree the extradition of Dominguez and Barrera.

4th. It has been asserted also in the debate that the latter have founded their petition for amparo upon article 6 of the treaty of extradition, and there has been much discussion in regard to the extradition of citizens. Although it is not true that the complainants have even spoken of article 6, and although a case of extradition of citizens is not treated of here, inasmuch as not even the documents proving the nationality of the accused have been presented, I consider it my duty to enter at length upon the discussion of this point, notwithstanding it may be thought irrelevant in this suit of amparo. I do not believe, as has been said, that a treaty of extradition which Mexico might make with another power, in which the reciprocal delivery of citizens should be stipulated, would be anti-constitutional. Far from there existing in the constitution any clause prohibiting such a treaty, I see that article 15 authorizes it, inasmuch as its prohibitions refer only to political offenders and to slaves, and says nothing of Mexicans. The argument which has been made in favor of the latter, taking it from the second part of the article, proves nothing.

If the interpretation given in this article to the constitutional text were exact, it would not only favor the exception of Mexicans from extradition, but foreigners also, inasmuch as the text refers explicitly “to the man and the citizen,” and we have already seen that such an interpretation makes article 15 contradict itself, undoing in its final clause that prescribed in the first part. Constitutionally, then, it cannot be said that the extradition of Mexicans is prohibited, as is that of slaves and political offenders.

It has been sought to maintain that the last clause of article 6 of the treaty of December 11, 1861, prohibits, or at least does not authorize, the extradition of citizens. This, without refusing to recognize the force of the words of the language, cannot be affirmed. The treaty of extradition celebrated with Italy prohibits such extradition, and is worded thus: “The extradition cannot take place if the accused are citizens of the country,” &c. Between these words and those of the treaty celebrated with the United States, which are, “neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this treaty,” between the two clauses, I repeat, is seen the full difference which exists between prohibition and liberty. If the American treaty had desired to restrict even that liberty it would have used other words, which would not have left it in force. But to understand both treaties in the same prohibitive sense is something which the meaning of the words does not permit.

The extradition of citizens can be arranged in treaties in one of three ways: either by prohibiting it, as is done in the treaty with Italy; or by making it obligatory, so that the delivery of citizens shall be inexcusable; or by permitting it, leaving it to the discretion of the governments, as is done in the final part of article 6 of the [Page 565] treaty with the United States; so that it will be impossible to confound the prohibitive form with the obligatory, and neither of these two with the discretional. From the words of the treaty itself, then, I deduce that the extradition of citizens, far from being prohibited, is permitted between Mexico and the United States.

It has been said that extradition is an odious business, and that as such the interpretation of the treaties which authorize it should be restricted. Extradition has been considered as an act of cruelty, almost of barbarity, because the delivery of a citizen to a foreign authority has been painted thus, as an act which present civilization condemns, and one which tends to restrict the progress of the rights of men. I think there is no reason in any of these arguments. Extradition, far from being a creation of barbarous times, is, on the contrary, an institution of modern international law, which tends to greatly elevate the relations maintained by nations by means of steam and electricity. The extradition of citizens, therefore, is not the act of barbarity which has been spoken of, but on the contrary is rather a desideratum of the most enlightened contemporaneous publicists; it is a tendency towards the international improvement of nations; it is an exigency of civilization which does not desire that the action of justice shall be detained at the frontiers. It has also been said that the delivery of Mexicans to the United States is an act of humiliation, because in that republic the extradition of citizens is not accepted, and in delivering Mexicans it is done with full knowledge of the fact that the act is not reciprocated.

In praising, as is due, the institutions of the great republic, it has been affirmed that they do not consent, nor can they consent, to the delivery of its own citizens, because this would be contrary to the Constitutional guarantees. All which has been said in regard to this point I consider altogether inexact. The first treaty of extradition which the United States adjusted with England, that of 1792, comprehended in its article 27 all class of criminals, and in the case of Robbins that article was interpreted so as to include natives and foreigners. The same article was afterwards reproduced in the treaty of 1842, celebrated between the same powers. In examining the American treaties we find in many of them the same clause of article 6 of our treaty which declares that the delivery of citizens is not obligatory, and there is not one in which it is absolutely prohibited.

In regard to this point there is a fact worthy of mention, which, better than citations, illustrates the views held in the United States concerning this particular.

When, in 1845, a convention was being negotiated in regard to extradition with Prussia, the plenipotentiary of the latter country insisted that it should prohibit the extradition of citizens, and the American Senate refused to ratify the convention because this prohibition was inserted. And the Secretary of State then said that the Government of the United States could not consent to the exception of citizens: first, because reciprocity would thus be destroyed, as the penal laws of various European countries have ex-territorial effect, punishing their subjects even for crimes committed in foreign territory, a thing which does not take place in the United States; and, second, because such exception would cause the violation of American naturalization laws.

But aside from this precedent, aside from the opinions of American publicists, as Kent and Elliott, the fact that in the official edition of American treaties this doctrine in regard to extradition is expressly laid down, may be considered as conclusive in the matter.

An act of humiliation, then, on the part of Mexico is not committed when she delivers up her citizens, with certain reservations, who have committed crimes in the United States, upon the ground that there is a lack of reciprocity in like cases on the part of that country.

Another argument against the extradition of citizens has been invoked: It is said that neither the laws nor the treaty authorize the government of Mexico to permit it. I have already said that the words of the treaty, which is a law, permit such extradition inasmuch as they do not expressly prohibit it nor make it obligatory. From the treaty, hence, is derived the faculty of the government to concede or refuse the extradition of a citizen; a faculty not capricious or arbitrary, as has been supposed, but eminent from considerations of national convenience, which should in each case be had in view, and subject to the rules of the laws of nations. The latter, which do not guarantee the impunity of crime, and which, on the contrary, tend at present to the recognition of the maxim that foreign territory should not become a safe asylum for criminals, the enemies of humanity, have commenced to establish certain theories which are already adopted by enlightened nations. One of them is this: A country which does not give exterritorial effect over its subjects to its penal laws, and which, in consequence, cannot punish them before its tribunals for crimes committed in foreign territory, should consent to the extradition of its subjects, provided that such considerations as the lack of reciprocity, the lack of guarantees with respect to the legislation of the country making the demand, or other merely political considerations, of which alone the government upon which the demand is made is the judge, do not prevent [Page 566] the extradition. This theory is defended with incontestable arguments and by learned contemporaneous publicists, and is already laid down in certain treaties.

If in Prussia and the German States the extradition of subjects is prohibited, as has been seen before, it is in consequence of the fact that the penal laws of those States extend their jurisdiction over their subjects in foreign territory, and make their tribunals competent to try them for those crimes.

Upon these considerations the convention between the United States and those countries of 1852 was founded in order to declare that “inasmuch as the constitution and laws of Prussia and the other states, which form a part of the convention, prohibit the delivery of subjects to a foreign government, that of the United States, with the object of making the convention strictly reciprocal, will also be free from all obligation to deliver citizens of the United States to those countries.” This being so, as is already seen by the significant precedents cited, and without the necessity of other authorities, and it being a fact that our penal laws have no exterritorial effect, it is evident that Mexico comes within the range of those theories, and that her government, authorized as it is by the treaty, may make use of the faculty which that treaty concedes in order to extradite Mexicans in grave and exceptional cases.

I can also cite a celebrated precedent in the United States in which a notable extradition was made without the obligation of any treaty whatever, and having for its principal motive the desire to respect the theory that a country cannot convert itself into an asylum for criminals. This extradition was that which Mr. Seward ordered to be made in 1864 of Argüelles to the Spanish authorities. The authority under which that eminent statesman acted in the case was then disputed, and he maintained that the American Government derived the faculty from the law of nations, because, although no conventional obligation existed for delivering up a criminal without a treaty, no one could maintain that a country is obliged to become an asylum for criminals who are the enemies of the human race; and, although from political motives, skillfully used in an electoral campaign, pains were taken to condemn such extradition, it is certain that the petition in regard to it which was presented in the House of Representatives was rejected by a large majority.

The Government of Mexico in decreeing the extradition of a citizen would not act as Mr. Seward did, authorized only by the comitas gentium, but with the faculty given it by a treaty which leaves it at liberty to act as it thinks proper, having in view the circumstances of the case and the general rules of international law.

A certain magistrate has permitted himself to use words of unjustifiable censure against the government, not in consequence of this matter, because the extradition of Mexicans is not treated of here, but with reference to the extradition of the criminals of Rio Grande City. Although the government does not need my defense, nor is this the place to make it, I cannot remain silent when these attacks cannot reach the government without first wounding me personally, inasmuch as I was secretary of foreign affairs when, under my responsibility, that extradition was made.

I have thought it, consequently, my duty to speak of a matter foreign to this case, accepting the discussion upon the ground to which it has been carried, although it be, in order to defend my conduct from unjust attacks, I am not authorized to reveal the secrets of the negotiations had for the extradition of the criminals of Rio Grande City; but I can assert in emphatic terms that it was neither fear nor humiliation which inspired the government in decreeing it; that it is calumny to say that terror of the United States, that the desire for the recognition of our government, &c., &c., determined that extradition. I protest against these calumnies, which can never be proved, and if it is doubted whether my words support this protest, my acts will prove it most emphatically. As secretary of foreign affairs, and with the concurrence of the President, I refused the extradition of other Mexicans demanded by the agents in Texas. The documents relating to these matters will be published some day, and I hope it will be soon, in order that the nation may speedily know how I endeavored to defend its honor and its interests in that delicate post. I reported my conduct in that affair at once to the competent authority, the Senate, because I not only do not shun the responsibility of my acts, but I desire that they may be judged and known. If the magistrates who have so freely censured the extradition of the criminals of Rio Grande City were cognizant of those negotiations, I am sure, from their patriotism and from their intelligence, that they would not have used the improper words which we have heard. But leaving aside these disagreeable incidents of the debate, and without revealing the secrets of the negotiations of which I have spoken, I think, with what is said, I have already established the legal foundations which support my opinion, that in certain exceptional cases the extradition of citizens may be made.

In order to carry this amparo upon irrelevant grounds, viz, the discussion of the extradition of Mexicans, it has been said, with entire correctness, certainly, that Dominguez and Barrera have asked amparo in view of Article 6 of the treaty, in combination with Article 15 of the constitution; that the nationality of the accused is Mexican, without any doubt whatever, because it is thus decided by the convention between Mexico and the United States of the 10th of July, 1868.

[Page 567]

In order to judge of the inexactness of this position, it is sufficient to read the demand of the complainants. And in order that it may be seen that the question of nationality is not decided by that convention, and above all that it does not treat of cases of the extradition of Mexicans, I have the honor to say something still in regard to these points. The said convention has no other object than to determine the citizenship of persons who emigrate from one country to the other, and its article 1 does not speak of anything except citizenship acquired by naturalization. It is sufficient to say this in order to understand that that convention is not, nor can it be, the only authority for deciding questions of nationality.

What nationality, for example, has the Mexican who, residing in Texas, in the year 1848, has not declared his intention to preserve his first nationality? Article 8 of the treaty of February 2, 1848, tells us that he is an American citizen. What nationality have the children of such Mexicans by origin? The American. Other treaties, then, the law of nations, our constitution and laws, outside of that convention, determine the question of nationality.

Do we know, perchance, whether Dominguez and Barrera selected American citizenship in 1848, or whether they are sons of American citizens, although of Mexican origin? To decide this point without proofs would be an act of carelessness unworthy of the first tribunal of the republic.

A case of the extradition of Mexicans, as I have said, is not treated here; the evidence of documents exists to the effect that the order issued by the department of war was given in the understanding that Dominguez and Barrera were American citizens, and that General Canales consulted the government in regard to this point. And I have had the honor to inform the court that this order remains suspended for no other purpose than to await the investigation which it should make in regard to the nationality of the accused. Owing to a wrong interpretation of the order of the department of foreign affairs of October 9, 1877, an order which declared that the judges were not qualified to decide matters of extradition, and the erroneous understanding of the judge of Matamoros, who is responsible, that investigation has not been made, and the true nationality of the accused has not yet been ascertained. Could it be decided in the present state of this investigation that the extradition is not obligatory because the accused are Mexicans? And what would happen if afterwards it should be proved that they are Americans? How would the clear and flagrant violation of the treaty be justified which in such case would be committed? This would be another act of carelessness which would have no excuse.

The extradition of Mexicans, then, is not treated of in this matter, but it is desired to know whether certain parties accused are citizens or foreigners, in order thus to decide the extradition asked. The government has a right to demand proofs concerning points of nationality, and it cannot be said to-day that Mexicans are going to be delivered to a foreign power without prejudging those proofs and prejudging the intentions of the government. To concede amparo in these doubtful cases, and to concede it when not even the accused themselves have asked it, would be on the part of the court a crime, and a crime even against the law which regulates the proceedings in suits of amparo. Th reasons which have been stated serve as the basis of the vote which I shall cast refusing the amparo asked by Dominguez and Barrera.