Baron Fava to Mr. Blaine.
Washington, April 20, 1890. (Received April 23.)
Mr. Secretary of State: The note which you did me the honor to address to me on the 21st ultimo contains two points. The first has reference to compliance with the two letters rogatory which I addressed to you on the 19th ultimo, relative to the trial in Italy of Bevivino and Yillella, and the second to the extradition of these two Italian subjects, which has been asked for by the United States Government.
As regards the first point, yon are pleased to state that, with a view to preventing, if possible, the ends of justice from being wholly defeated in the case of the two criminals in question, you have sent thé two aforesaid letters rogatory to the governors of the States of Pennsylvania and New York for such action as they may think proper. While thanking you for this information, I beg you to permit me to remark, Mr. Secretary of State, that it is for the very purpose of preventing the ends of justice from being in any way defeated, and in order that justice may be more fully administered (this point can not be contested), that Bevivino and Yillella are now imprisoned in Italy, so that they may answer, before the courts of their country, for their complicity in the murder committed by Michele Rizzolo, and that the chamber of indictments of the court of appeals at Catanzaro is now expecting to receive from the courts of the United States the documents which it asked for by the letters rogatory in question. In this connection, I must even renew my request that you will use your good offices in order to accelerate, so far as possible, the transmission of the said documents to this royal legation. It is highly important that Bevivino and Yillella, who have been in prison for a year, should be speedily tried; and it only depends upon the American judicial authorities to hasten their trial by promptly transmitting these documents.
[Page 556]In the second part of the note to which I am now replying Your Excellency is pleased to remind me that the United States Government, in pursuance of the treaty existing between the two countries, applied more than a year ago for the extradition of Bevivino and Villella, and that the Boyal Government refused to surrender these two persons on account of their Italian nationality. Your Excellency adds that the treaty contains no exception in favor of Italian subjects or American citizens, but that it permits the extradition of all persons in general, and that consequently, while you transmit the aforesaid letters rogatory to the authorities of the State of Pennsylvania and New York, you must reserve the right, to which you consider the United States Government entitled, to secure the extradition of Bevivino and Villella, in order that they may be tried in the country in which they committed the crime.
It is wholly unnecessary for me to remind Your Excellency that this question has been discussed at length and entirely settled by the royal ministry of foreign affairs and the United States legation at Borne.
Mr. Stallo must have informed the honorable Department of State that, according to Italian law, no citizen can be removed from the jurisdiction of his natural judges, that is to say, from that of the judges of his own country; and that, although an exception is naturally made to this principle when a citizen who has committed a crime in a foreign country is arrested in that country, it nevertheless resumes its force when the same citizen returns to his country. The new Italian penal code, in its ninth article, as well as the former code in its fifth and sixth articles, are equally explicit on this subject. They solemnly declare that “the extradition of a citizen is not admissible.”
This system, which has been adopted by a majority of the nations of Europe, and the object of which’is, not to alter the personal penal status of the citizen, has, during the past 50 years, been most thoroughly examined by writers on international law. All publicists agree in admitting that this principle now forms a part of public law, in virtue of which the governments of continental Europe never grant the extradition of their own subjects.
This principle, moreover, has not only become part of the public law of Europe, but it has, I am happy to say, been recognized by the United States Government itself in the extradition treaties which it has concluded with Austria-Hungary (article 2), the Grand Duchy of Baden (article 2), Bavaria (article 3), Belgium (article 5), the Bepublic of Haiti (article 41), Mexico (article 6), the Netherlands (article 8), Turkey (article 7), Prussia (article 3), and with it the German Empire, in virtue of accession by subsequent treaties, Spain (article 8), Sweden and Norway (article 4), and Salvador (article 5).
In view of the explicit provisions of the Italian law, and of the practical recognition of this principle of universal public law on the part of the governments of Europe and that of the United States, it can not be claimed, on the ground of the lack, in the treaty between Italy and the United States, of an express reservation in favor of natives of the two countries that Italy has renounced a doctrine which is based, not only on her own laws, but also on her own public law. If the negotiators of the extradition treaty of 1868 had wished to abrogate this universally accepted doctrine, which has been especially adopted by the two contracting parties, they would certainly, in consideration of its gravity and importance, have stated that fact in a formal declaration, adding [Page 557] to the words of the first article of said treaty the following clause: “without excepting their respective citizens.”
Under these circumstances, the Government of the King is perfectly justified in declaring, as it has already done, that neither the spirit of the Italian law, nor even the text of the treaty invoked by Your Excellency, would permit it to comply with the request which has been made for the extradition of the Italian subjects Bevivino and Villella.
There is no ground whatever for the inference, from the foregoing, that the guilty parties would, for that reason, escape punishment for the crime committed by them. Any insinuation on this subject would be out of place, since it is a notorious fact that the Italian magistrate at once recognized his own competency; that he immediately proceeded to arrest the accused parties, who are now in prison; and that he commenced a regular judicial action against them without delay. That judicial action would have terminated by this time if the courts of Pennsylvania had promptly complied with the request of the Italian judicial authorities, who requested them, early in 1889, to forward the papers in the principal case, which was closed in the United States by the sentence of Miehele Rizzolo to capital punishment.
The United States legation at Rome has been very fully informed of the contents of the present note, and it is only to answer the objections which the United States Government has now thought proper to make to the course pursued by the Royal Government in this matter that I have had the honor to repeat to Your Excellency the considerations to which the King’s Government did not fail at the proper time to call Mr. Stallo’s attention.
Be pleased to accept, etc.,