No. 120.
Mr. Dichman to Mr. Evarts.
Legation of
the United States.
Bogota, October 30, 1878.
(Received December 10.)
No. 17.]Sir: Before leaving the United States my attention
was called, at the Department, to the subject of an extradition treaty with
this country. The inclosed copies of correspondence will show to the
Department what I have done in this matter, upon which I desire to make the
following observations:
The Department will learn from the inclosed papers, that in my intercourse
with the Colombian Government I have treated the general subject of
extradition as entirely separate from the right to bring criminals across
the Isthmus of Panama. The latter is a matter of importance to the
Government of the United States, and, I think, ought to be settled in the
direction indicated in my letter to the secretary of foreign relations of
Colombia. In my conversations with him on this subject, I have endeavored to
impress him fully with the following points, viz:
- 1.
- That extradition of criminals is no longer a measure of
exceptional gravity, but that as nations have extended and
multiplied their relations they have realized the necessity of
mutually aiding each other in the repression of offenses against the
laws of universal morality and justice.
- 2.
- That the transit across a nation’s territory cannot be considered
in the light of extradition, on the ground that a criminal brought
to the borders of a State under compulsion, for the purpose of
transit, cannot be compared to one who voluntarily seeks an asylum
there under the protection of its laws, and for the surrender of
whom the power of the State has to be invoked.
- 3.
- That aside from the general principle stated in the aforesaid No.
2 (and to avoid difficulties arising under the constitution of
Colombia), the right of transit guaranteed to the Government of the
United States by the treaty of 1846, clearly embraces the transfer
or transit of criminals by the Government of the United
States.
- 4.
- That the right of transit being guaranteed to the Government of
the United States by treaty prior to the adoption of the
constitution of the United States of Colombia, no possible benefit
of its “bill of rights” can inure to a criminal to be taken across
the Isthmus of Panama by the Government of the United States.
The main issue between the secretary of foreign relations and myself is as to
what papers or proofs, in the case of a criminal brought by the Government
of the United States to the Isthmus of Panama, for transit, are to be
exhibted to the Government of Panama as the constitutional agent of the
Government of the United States of Colombia, it being inadmissable, in my
opinion, for the United States to consent to the exercise of any discretion
whatever on the part of the Government of Panama, while the secretary of
foreign relations contends, as shown in his conditions 2 and 3, for a
discretion to refuse the transit.
As to the general subject of an extradition treaty with this country, I do
not deem it advisable to negotiate one at present, but will keep the
question before the Colombian Government, and continue to discuss the same
informally, in order that a treaty may be negotiated at any time the
Department may deem advisable. I do not believe that the Colombian
Government, if an extradition treaty were negotiated and ratified, would be
able to carry it out at all times. The want of a federal judiciary and
federal officers in the different States, and the necessity of relying upon
the State governments to execute an international agreement, produces
complications wherever the State and federal governments are in the hands of
parties opposed to each other. A demand might be made upon the Colombian
Government, under the terms of a treaty, for the surrender of a criminal,
with which it could not comply even with the greatest disposition on the
part of the government to fulfil its agreement, thus giving rise to
misunderstandings between the two governments, which had best be
avoided.
* * * * * * *
I am, &c.,
[Inclosure 1 in No.
17.—Translation.]
Bogota, October 24,
1878.
Sir: In conformity with the understanding in
our interview of to-day, I have the honor to address you, with the
object of informing you that the Colombian Government does not deem it
inconvenient to execute with that of the United States of America an
extradition treaty, which will be in conformity with the principles
generally admitted by the waiters (publicists) upon this matter, and
adopted usually in conventions of this nature.
Respecting the transport across the Isthmus of Panama of individuals, the
extradition of which has been obtained by the United States, from other
countries, in accordance with the respective treaties, the Colombian
Government will consent thereto under the following conditions:
[Page 253]
- 1.
- That the crime shall be among those mentioned in the
extradition treaty to be executed between the United States of
America and Colombia.
- 2.
- That there be presented to the government of the State of
Panama the documents on which the extradition is based.
- 3.
- That said government may refuse the transit when in its
opinion the extradition is not justified by the documents which
have been presented.
- 4.
- That the custody of the criminals will be by the armed forces
of the nation or of the State of Panama.
I am the honorable minister’s, with all consideration, very attentive and
obedient servant,
Hon. Ernest Dichman,
Minister Resident of the United States of America.
[Inclosure 2 in No. 17.]
Legation of the United States,
Bogota, October 25,
1878.
Sir: It affords me pleasure to acknowledge the
receipt of the Hon. Pablo Arosemena’s note of yesterday, on the subject
of the extradition of criminals from the United States of Colombia, and
the conditions under which the Colombian Government will permit the
transit of criminals across the Isthmus of Panama.
The Government of the United States of America will undoubtedly be
gratified to learn of the readiness with which the Government of the
United States of Colombia is willing to enter upon this negotiation, and
I shall ask for instructions concerning the same.
Before, however, submitting to the government at Washington the
conditions under which the Colombian Government is willing to permit the
transit of criminals extradited by the United States across the Isthmus
of Panama; I would respectfully invite the attention of the honorable
secretary in charge of the foreign relations, to the following
propositions, which are made informally, in order that in the discussion
thereof the principles underlying this question maybe fully developed,
and a result reached which, while acknowledging and keeping within the
rights of sovereignty of the United States of Colombia, will give to my
government a safe and practical method of accomplishing the object in
question.
- 1st.
- The question of transporting across the Isthmus of Panama
criminals of the United States of America extradited from foreign
countries, or taken from one port of the United States to another,
is simply a question of the regulation of the right of transit
provided by article 35 of the treaty of 1846, and in the discussion
of this question the general principles applicable to extradition
treaties do not enter.
- 2d.
- The transit of such criminals from countries other than the United
States of America, shall be permitted upon the exhibition to the
government of the State of Panama, as the agent of the Government of
the United States of Colombia, of the warrant of extradition or
other document on which such criminals have been surrendered.
- 3d.
- The transit of such criminals from one part of the United States
to another shall be permitted upon the exhibition of the warrant of
arrest, or a certified copy of the indictment under which such
criminals are held, to the government of the State of Panama, as the
agent of the government of the United States of Colombia.
- 4th.
- Upon the application of the consul of the United States of America
to the government of the State of Panama, as the agent of the
Government of the United States of Colombia, the officers in charge
of such criminals may be appointed officers of the United States of
Colombia for the purpose of conducting such criminals across the
Isthmus of Panama; otherwise the custody of such criminals will be
by the officers of the United States of Colombia, who will then be
responsible for their safekeeping.
A careful reading of paragraph 1 of article 35 of the treaty of 1846
leads me to the conclusion expressed in the first of the above
propositions. The right of transit is not only guaranteed to the
citizens of the United States and their merchandise, but also to the
government, and the government cannot enjoy the right of way or transit
across the Isthmus of Panama, except in the exercise of one of its
functions, and the function with which we are now concerned, is the one
of bringing back criminals to the plaee where the crime was committed in
order that they shall be tried and, if found guilty, punished. This is a
duty for the protection of society, in the prompt discharge of which the
United States of Colombia, in fact the whole world, are equally
interested with the Government of the United States of America, and for
the better performance of which it might some time be desirable for the
Government of the United States of America to make use of the right of
transit guaranteed to it by article 35 of the treaty of 1846.
[Page 254]
If the honorable secretary should arrive at the same conclusions with
myself, then the only remaining question would be as to how this right
of transit is to be exercised. For my views on this branch of the
question, I beg leave to call the honorable secretary’s attention to my
propositions 2, 3, and 4. By the acceptance of 2 and 3 the rights of
persons would be sufficiently protected, and No. 4 would guard against
any infringement of the sovereignty of the United States of Colombia. On
this point I am satisfied that the honorable secretary agrees with me,
that it is not to be supposed that there should be any desire on the
part of the Government of the United States of America, even for the
purpose of exercising a function of government by which the good order
of society is maintained, to infringe in the slightest degree upon the
rights of sovereignty which the United States guarantees in the same
article of the treaty of 1846, which secures and guarantees to the
United States and the Government thereof the right to transit.
In the interviews which I have had with the honorable secretary on this
subject, I have become convinced that he takes a statesmanlike view of
the question, endeavoring to reconcile his ideas of duty to
constitutional law with the equally high duty to humanity and social
order.
It is with this spirit that the above propositions are submitted for his
consideration, and I feel satisfied that in further personal conferences
on this subject, an understanding will be arrived at which I can
recommend to my government as the basis for a treaty, and which will
show to the world that the United States of Colombia is always ready to
contribute its share in the family of nations towards the good order and
regulation of society.
I avail myself of this occasion to renew to the honorable secretary the
assurances of my high consideration.
