No. 881.
Mr. Bayard to Mr. Cayetano
Romero.
Washington, August 29, 1888.
Sir: I have the honor to acknowledge the receipt of Señor Don Matias Romero’s note of the 13th instant, complaining, in pursuance of instructions received by him from Seiior Mariscal, of the action of the judge of Cameron County, Texas, in the case of the application made to him on June 28, 1887, by the president of the Ayuntamiento of Matamoros, for the extradition of one Paulino Preciado, formerly a second lieutenant of the Mexican army, on the charge of embezzlement of public moneys. It is alleged that, notwithstanding the sufficiency of the evidence of Preciado’s guilt and of the fact that he was under regular prosecution under Mexican law for such embezzlement of funds belonging [Page 1316] to his regiment, the application, after examination had on the 6th, 7th, and 20th days of July, 1887, was denied by the said judge on the ground of insufficient proof, and of the irregular certification of the papers by the United States consul-general at Matamoros. Minister Romero argues that under the existing treaty of extradition between the United States and Mexico the evidence submitted was ample; that the alleged irregular certification by consul-general (which consisted in omitting to state that Mr. Sutton, the consul general, is the principal consular officer of the United States in Mexico), was not irregular inasmuch as the office of consul-general is itself the highest principal consular office in the country, and that “the judge of Cameron County, Texas, had no power to acquit Preciado of the crime of embezzlement,” inasmuch as such acquittal could only take place after trial by the Mexican courts which have full and exclusive jurisdiction in the premises.
As to the last point, which embraces a general principle, I may at once remark that the function of trial and acquittal is no part of the official duty of the examining magistrate in cases of extradition, his office being solely to determine whether the case comes under the provisions of existing treaty, and whether the proof adduced would suffice for the arrest and committal for surrender of the accused under the laws of the country where he may be found. To determine these points the evidence of witnesses and arguments of counsel may be heard, but the proceeding is only judicial so far as the determination of the question of proper surrender is concerned, and the law administered is that of the country where the accused is found, so that a decision of non-surrender can no more import acquittal from a charge preferred under the laws of another country than a commitment for surrender could import conviction of the same charge. This point, as presented in Minister Romero’s note, should, I submit, be eliminated from the case.
The case of Preciado has been under consideration heretofore. I find on the files of this Department two notes addressed by you, as chargé d’affaires ad interim, to me, dated, respectively, the 19th and 21st of July, 1887, in the first of which yon requested me to recommend to the governor of Texas the surrender of the said Preciado in conformity with the provisions of treaty applicable to the case, and in the second of which you acknowledged the receipt of my note of the 21st of the same month, inviting your attention to the circumstance that the Government of Mexico, having availed itself of the option given by Articles 2 and 4 of the existing treaty of extradition and made its application directly to the authorities of the frontier State of Texas, it was not in my power to make to those authorities an independent recommendation for surrender in the premises.
It now appears from Minister Romero’s note of the 13th instant that the proceedings begun before the county court of Texas are entirely at at end.
The treaty of 1861, to which reference has already been made, provides for the extradition of criminals from one country to the other. Requisitions for surrender are, in general, to be made through the medium of the respective diplomatic agents of the two countries; but in case of crimes committed in the frontier States or Territories, requisitions may instead be made by the local authorities. So also the surrender of a fugitive can, in general, only be made by the authority of the executive of the country where the fugitive is found, but in the exceptional case above mentioned, the surrender may be made by a local authority of a frontier State or Territory.
The application for the surrender of Preciado being for a crime [Page 1317] alleged to have been committed in the frontier State of Tamaulipas, was properly made by a local officer in that State to a local authority in the State of Texas, where the accused was found. No application for his surrender has been through the diplomatic agents of Mexico, and the Executive of the United States was not called on to deliver him up.
The Mexican authorities having thus elected to apply to the authorities in Texas, this Department had no power to interfere in the proceedings so instituted, and now that these proceedings are at an end, I have no power to review the decision of the local magistrate.
Should the Government of Mexico see fit to begin fresh proceedings based upon a new application in either of the modes pointed out by the treaty, it will doubtless receive due consideration from the authority to which it is addressed.
Accept, etc.,