Mr. Blaine to Baron Fava.

Sir: I have had the honor to receive your note of the 20th of April last, in relation to the cases of the two Italian subjects Bevivino and Villella, who, having committed murders in the United States of a most aggravated and atrocious character, have sought asylum in their own country, which has refused to comply with the demand of this Government, based upon treaty, for their extradition. The immediate occasion of your note was the reply made by me to your request for the execution in this country of letters rogatory issued by a court in Italy, before which the two fugitives have been arraigned for trial, under Italian law, for the crimes committed in the United States. In that reply I stated that, with a view to preventing, if possible, the total defeat of the ends of justice in the cases in question, I would forward the letter to the governors of the States of Pennsylvania and New York for such action as they might find it proper to take, the letters being respectively addressed to the authorities in those States. At the same time I took occasion to reserve what I regarded as the clear right of the Government of the United States, under the treaty with Italy, to require the delivery of the fugitives for trial in this country.

In answer to this you remind me that this question has been discussed at length and entirely settled by the royal ministry of foreign affairs and the United States legation at Rome; that Mr. Stallo, lately the minister of the United States to Italy, must have informed this Department that, according to Italian law, no citizen can be removed from the jurisdiction of his natural judges, the judges of his own country; and that, although an exception is made to this principle when a citizen who has committed a crime in a foreign country is there arrested, it nevertheless resumes its force when he returns to his own country. You also state that the new Italian penal code expressly forbids the extradition of Italian subjects, and declare that this principle now forms a part of public law, which the United States has recognized in many of its treaties. For these reasons you argue that, “if the negotiators of the extradition treaty of 1868 had wished to abrogate this universally accepted doctrine, which has been specially adopted by the two contracting parties,” they would certainly “have stated the fact in a formal declaration, adding to the words of the first article of the said treaty the following clause: ‘without excepting their respective citizens.’” Under these circumstances, you contend that neither the spirit of Italian law, nor even the text of the treaty, would permit the Italian Government to comply with the request for the surrender of Bevivino and Villella.

From this conclusion I should not dissent if I could accept the arguments upon which it is based. I find myself, however, wholly unable to accept those arguments.

[Page 560]

In the first place, I may be permitted to observe that we are not discussing a question of Italian law, but an international compact between the United States and Italy. In this relation it can not be regarded as conclusive—if, indeed, it is at all pertinent—to quote the Italian municipal law, to say nothing of the provisions of the new penal code adopted 20 years after the conclusion of the treaty. If the decision of the question be put upon the municipal law of the contracting parties, this Government is entitled to appeal to its own, by which no exception is made in favor of its citizens. Viewing the matter merely as a subject of statutory regulation, the surrender by the United States of its citizens is entitled to as much weight as the refusal of Italy to pursue the same course with respect to Italian subjects.

You are correct in your supposition that Mr. Stallo informed the Department of the provisions of Italian law on the subject, but the Department is surprised to learn that the Government of Italy entertains the impression that the question was settled by the royal ministry of foreign affairs and the United States legation at Borne. In various inteviews with the royal ministry of foreign affairs reported by him to the Department, as well as in formal communications addressed to that ministry, Mr. Stallo protested against the position of the Italian Government; and the Department is not informed of anything said or written by him that savored of acquiescence. Mr. Stallo’s personal views were very strongly adverse to the position ultimately taken by the royal ministry, and in those views he was supported by the instructions of the Department. The Department is therefore by no means inclined to regard the question as settled. It is thought that it would be a dangerous precedent to admit that a nation may determine its conventional duty by its own statutes. And for this reason, among others, the Government of the United States, being clearly of opinion that it is entitled to the extradition of Bevivino and Villella under the treaty of 1868, is unable to relinquish its claim in response to any of the arguments which have been brought against it.

In order to understand the present controversy, it is necessary to revert to its origin. It did not arise in the cases of Villella and Bevivino, but in that of Salvatore Paladini, whose extradition Mr. Stallo, on May 17, 1888, demanded of the Italian Government on a charge of passing counterfeit money of the United States, for which Paladini was under indictment in the district court of the United States for the district of New Jersey. It being important to secure the arrest of the fugitive without delay, Mr. Stallo delivered the requisition to Mr. Crispi in person and called his attention to the urgency of the matter. Mr. Crispi promised to refer it immediately to the ministry of grace and justice and asked no question as to the fugitive’s citizenship. Mr. Stallo heard nothing more of the case until the 2d of June, when he received a letter from the foreign office stating that his application had been communicated to the ministry of grace and justice without the least delay, but that it was important to know of what country Paladini was a native and what were his paternity and his citizenship. This, inquiry was made for the first time nearly 2 weeks after the date of the application. On the same day Mr. Stallo replied that Paladini was a native of Messina, in Sicily, and had never been naturalized as a citizen of the United States, having been in that country only a few months before committing the crime imputed to him. To this note no reply was made; and on June 25, 1888, Mr. Stallo addressed another note to Mr. Crispi, calling attention to the fact that he had not been advised whether the warrant of arrest asked for on the 17 th of May had been issued or [Page 561] whether any steps towards Paladini’s arrest had been taken. On July 2 Mr. Damiani, the undersecretary of state, replied that the minister of grace and justice had communicated the facts to the ministry of the interior, which had taken the steps necessary to the fugitive’s apprehension. On July 7 Mr. Damiani wrote again to the effect that the royal prefecture in Messina, to which place Paladini had returned, was unable to find him and believed that he had gone back to the United States. Of this note Mr. Stallo acknowledged the receipt on the 14th of July, and at the same time requested the return of the papers which he had submitted to the foreign office 2 months previously in support of his demand for Paladini’s surrender. In order, however, that there might be no room for misconstruction of his action, he adverted to the question of citizenship and observed that in his note of May 17 and the documents accompanying it there was no reference to Paladini’s nationality, for the reason that the treaty of 1868 made no distinction between citizens of the contracting parties and other persons. On July 26 Mr. Stallo had an interview with Mr. Orispi, in which the latter took the ground that the treaty did not require the surrender of citizens, and also asserted his impression that there was an express reservation on the subject. Mr. Stallo replied that he was quite fresh from his reading of the treaty, and that Mr. Crispi’s impression was erroneous. On the following day Mr. Stallo addressed to Mr. Crispi an elaborate argument, showing that the treaty contained no exception as to citizens, and saying, among other things, that since the middle of the present century no state had assumed the right to refuse the extradition of its subjects charged with the commission of crime abroad, unless the treaty under which the surrender was demanded contained a clause justifying such refusal.

On July 27 the minister of foreign affairs replied, saying, among other things, that the ministry of grace and justice, which had been consulted, was ofofinion that in the present state of the case the question of citizenship need not further be discussed, for the reason that, according to the rules which governed extradition in Italy, it was necessary to hear in each case, first, the opinion of the crimes section of the court of appeals in the district in which the arrest was asked for (articles 853 and 854 of the code of criminal procedure); second, that of the council of state on the question whether the demand for extradition was conformable to the stipulations of the convention (article 8, No. 2, of the law of March 20, 1865). Paladini not being under arrest, a decision of those tribunals could not be asked. After the receipt of this note Mr. Stallo learned that Paladini had been arrested at Messina. He at once saw Mr. Orispi, who said, that in his judgment, it was not necessary at the moment to determine whether an Italian subject could be surrendered, inasmuch as that question would be decided by the court at Messina, before which Paladini would be brought. He added that his interpretation of the treaty of 1868 had been based upon the circumstance that the law of Italy prevented the extradition of Italian subjects for crimes perpetrated in foreign jurisdictions, the crimes committed by them being justiciable by the Italian courts. Mr. Stallo replied that he supposed that in Italy, as elsewhere, treaty obligations were a part of the law of the land, so that in the end they were brought back to the question of Italy’s obligation under the treaty. Subsequently an extended correspondence took place, Mr. Stallo maintaining the duty of surrender and the foreign office denying it. It is proper to notice that in a note of August 28, transmitted to the foreign office August 30, 1888, Mr. Stallo adverted to the fact that the demand for Paladini’s surrender [Page 562] was made on May 17, and that, notwithstanding the evident Italian character of his name, for more than 2 weeks nothing was said about his nationality. Mr. Stallo also observed that in his note of June 2 he distinctly informed the minister of foreign affairs that Palatini was an Italian subject who had never been naturalized in the United States but, notwithstanding this distinct notice, none of the communications addressed to him by the Italian foreign office thereafter contained a hint that Paladini could not be extradited because he was an Italian subject, and that it was not until the interview of July 26 that this claim was first advanced. From this fact, coupled with the circumstance that all this time and for more than 2 months the American agent had waited in Italy to receive Paladini upon his arrest and extradition, as the Italian authorities well knew, the inference would seem to be not only legitimate, but irresistible, that for 2 months and several days at least the view taken by the Italian Government of its duty under the treaty of 1868 was the same as that held by the United States.

On August 30, 1888, Mr. Damiani returned the President’s warrant to Mr. Casale, the agent of the United States, to the legation without any comment. On the following day Mr. Dougherty, secretary of the legation, acknowledged its receipt and inquired whether, by the return of the warrant, he was to understand that the Government of His Majesty the King of Italy refused to extradite Paladini.

On October 25 Mr. Crispi, more than 5 months after the original demand, announced that, according to the Italian procedure, the minister of grace and justice had submitted the demand to the successive examination of the criminal section of the court of appeals of Messina, of the council of state, and of the council of ministers, and that they were unanimously ofofinion that Paladini should not be extradited, for the reason that he was an Italian subject. This opinion, he said, was based upon certain principles, which he stated. It is unnecessary to recount them, since they are the same, in almost the same language, as those set forth in your note.

In January, 1889, the Department received from Governor Beaver, of Pennsylvania, information that two Italians named Vincenzo Villella and Giuseppe Bevivino, charged with the commission of atrocious murders in Luzerne County, Pa., had taken refuge in Italy. The Department at once telegraphed information of the facts to the legation at Borne. Mr. Stallo saw the minister of foreign affairs, and, laying the facts before him, was assured that measures would at once betaken for the arrest of the accused and for their eventual trial in Italy as soon as he could give their names, which he was at the time unable to do, owing to a confusion in the telegrams.

On January 30, 1889, Governor Beaver made a formal request that the extradition of the fugitives be demanded. He had been informed of the attitude of the Italian Government in the case of Paladini, but, because of the importance of inflicting punishment upon the criminals in Pennsylvania, and influenced by anofinion which, he had been informed, had been expressed by the Italian consul at Philadelphia to the effect that the fugitives would be given up, he asked the Department to endeavor to obtain their surrender. A President’s warrant was accordingly issued to John R. Saville and Frank P. Dimaio, the persons designated by Governor Beaver to receive the fugitives, and Mr. Stallo was so informed. These agents, Mr. Stallo was also informed, would take with them authentic proof of the guilt of the fugitives and upon arriving in Italy would proceed at once to Rome to consult with [Page 563] him. Meanwhile he was to ascertain whether the extradition of the fugitives could be obtained and to apply to the Italian Government for that purpose.

On February 20 Mr. Stallo acknowledged the receipt of the papers, which he transmitted to the foreign office with an application for the fugitives’ surrender, coupled with an expression of the earnest desire of the United States that the determination in the Paladini case should be reconsidered. Mr. Stallo also called attention to the fact that the principal witness against the two fugitives was their accomplice, Michele Rizzolo, who was under arrest at Wilkes Rarre, in Pennsylvania, and had made a full confession, and that it was impracticable to bring this witness, either before or after his trial, to Italy in order to testify before an Italian court.

On the 7th of March Mr. Stallo inclosed to the Department a note from Mr. Orispi, bearing date of the preceding day, in which the surrender of the fugitives was refused. The reasons given were the same as those stated in the case of Paladini.

It was in view of the total divergence of opinion between this Government and that of His Majesty, developed in the preceding correspondence, that I deemed it necessary to make the reservation contained in my note of the 21st of March last. I shall now endeavor to show that that reservation was not only justified, but also required, by the circumstances.

I do not understand the Italian Government to deny that the provisions of the treaty of 1868, if not obstructed by any municipal statute or qualified by any principle of international law, would oblige the contracting parties to deliver up their citizens. Indeed, I assume this to be admitted. The treaty says that the two Governments mutually agree to deliver up “persons who, having been convicted of or charged with the crimes specified in the following article committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other.” As the term “persons” comprehends citizens, and as the treaty contains no qualification of that term, it is unnecessary to argue that the treaty standing alone would require the extradition by the contracting parties of their citizens or subjects.

I shall also assume it to be admitted by the Italian Government that the parties to a treaty are not permitted to abridge their duty under it by a municipal statute. It is true that the authorities of a country may, by reason of such a statute, find themselves deprived of the power to execute a treaty. But if, in obeying the statute, they violate or refuse to fulfill the treaty, the other party may justly complain that its rights are disregarded and may treat the convention as at an end. Hence, in appealing to its statutes to justify its action in the present case, I understand the position of the Italian Government to be that those statutes are merely declaratory of the law by which nations are bound to be governed in their dealings one with another.

We are brought, therefore, to the consideration of the question whether the refusal of the Italian Government to deliver up Paladini, Villella, and Bevivino, under the treaty of 1868, is justified by the principles of international law. The answer to be given to this question must be decisive of the matter.

It is stated—and the statement has the sanction of the eminent Italian publicist Fiore—that the refusal to surrender citizens had its origin in the practice of extradition by France and the Low Countries in the eighteenth century. Formerly such an exception was not recognized. [Page 564] Even the Romans, who were not wanting in a disposition to assert their imperial prerogatives, did not refuse to deliver up their citizens, their feciales being invested, in respect to states in alliance with Rome, with authority to investigate complaints against Roman citizens and to surrender them to justice if the complaints were found to be well grounded. The exception of their citizens by France and the Low Countries originated in the following manner:

The two countries practiced extradition, not under a convention, but under independent declarations of a general character. By the Brabantine Bull, issued by the German Emperor in the fourteenth century, subjects of the Duke of Brabant enjoyed the privilege of not being withdrawn from his jurisdiction. A similar privilege was gradually extended by law and usage to other subjects of the House of Austria, while the Low Countries were still under its dominion. In consequence of the establishment of this rule, the Low Countries refused to deliver up their subjects, and France, as an act of retaliation, refused to surrender Frenchmen. Thus, not in recognition of any principle, but merely with a view to observe a strict reciprocity, was the precedent first established.

That the example thus set has generally been followed by European states is not to be questioned; for, with the single exception of England, it is believed that they have adopted the rule of refusing to deliver up their citizens. But, in order to determine the force and effect of this rule from the point of view of international law, it is necessary to inquire how it has been secured and enforced. Where no treaty exists, the subject is simple. It is generally agreed that, in the absence of a convention, extradition is a matter of comity, and not of positive obligation. In such case, each nation is free to regulate its conduct according to its own discretion. If it declines to surrender its citizens, its action, though detrimental to the interests of justice, does not afford ground for complaint or pressure, since it is acting within its right. But, where the subject is regulated by treaty, the case is different. What before was a matter of comity and discretion, becomes a matter of duty, and the measure of that duty is the treaty. It is not strange, therefore, that, in order to avoid the obligation to extradite their citizens, the states of Europe have industriously inserted in their treaties an express stipulation to exempt themselves from that obligation. With respect to those who are to be surrendered, they usually employ, as is done in the treaty between the United States and Italy, the general term “persons.” Having used this term, they then proceed to insert a clause to except their citizens from the general obligation; and it is by means of this clause, and not by reason of an implication created by international law, that the duty of surrender is avoided.

More cogent proof of this fact could not be found than is afforded by the extradition treaties of the United States with European nations, to which you refer for the purpose of showing that this Government has recognized the exemption of citizens by international law. Among those treaties is that with Prussia and other German states, concluded June 16, 1852, which is the first in which the United States admitted an exception of citizens. It is a part of the public history of extradition that for years the Government of the United States refused to negotiate treaties for the surrender of fugitives from justice with several of the states of Europe, because, owing to the limitations of their domestic laws, they insisted upon the insertion of a clause to exempt their citizens. It was for this reason alone that this Government, in order [Page 565] to avoid the misfortune of a total lack of extradition, finally admitted the exception. Accordingly, we find in the preamble to the treaty with Prussia and other German states the following recital:

Whereas it is found expedient for the better administration of justice and the prevention of crime within the territories and jurisdiction of the parties respectively that persons committing certain heinous crimes, being fugitives from justice, should, under certain circumstances, be reciprocally delivered up, and also to enumerate such crimes explicitly; and whereas the laws and constitution of Prussia, and of the other German states, parties to this convention, forbid them to surrender their own citizens to a foreign jurisdiction, the Government of the United States, with a view of making the convention strictly reciprocal, shall be held equally free from any obligation to surrender citizens of the United States: Therefore, etc.

This recital it is to be observed, was not a declaration by the United States alone, but by both parties, of the reason for the exclusion of citizens. The same declaration is found in the treaty with Bavaria of 1853, with Austria-Hungary of 1856, with Baden of 1857, and with various German states by virtue of their accession to the treaty with Prussia, which was, in 1868, finally extended to the whole of the North German Confederation.

In the record of the negotiation of the treaty with Italy no reference is found to the subject of citizens. What may have been said in the oral discussions can not now be discovered. It is, however, a matter of record in this Department that in the same year, 1868, Mr. Seward, who, as Secretary of State, signed the treaty on the part of the United States, refused to conclude a convention with Belgium because she insisted upon the exception of her citizens. In this relation I may advert to another fact which possesses great significance. The treaty of extradition concluded between the United States and Italy in 1868 was one of two treaties concluded between those countries in that year, the other relating to the rights and privileges of consuls. These treaties were designed to take the place of the treaties formerly made between the United States and the independent States of Sardinia and the Two Sicilies. In the treaty with the latter Government of 1855, there were stipulations relating to extradition, and among them was the following provision:

The citizens and subjects of each of the high contracting parties shall remain exempt from the stipulations of the preceding articles, so far as they relate to the surrender of fugitive criminals. (Article xxiv).

In view of the existence of this clause in the treaty with the Two Sicilies, it can scarcely be supposed that the parties to the substitutionary arrangement of 1868 negotiated that instrument in oblivion of the question as to citizens. And when we consider the omission of the clause, especially in conjunction with Mr. Seward’s refusal to negotiate with Belgium, the inference seems to be morally irresistible that the obligation to deliver up their citizens, under the treaty of 1868, was fully understood by the contracting parties at the time of its conclusion.

From what has been stated I am forced to conclude, not only that international law does not except citizens from surrender, but also that it has been well understood, especially in dealing with the United States, that the term “persons” includes citizens and requires their extradition, unless they are expressly exempted.

Nor am I able to find sufficient ground for the refusal to surrender citizens in the general principles on which extradition is conducted. It does not satisfy the ends of justice to say that, although a nation does not extradite its citizens, it undertakes to try and punish them. This argument may be admitted to have great force where, by reason [Page 566] of the absence of any conventional assurance of reciprocity, a nation declines a demand addressed to its discretion. But the chief object of extradition is to secure the punishment of crime at the place where it was committed, in accordance with the law which was then and there of paramount obligation. It is for this purpose that extradition treaties are made, and, except in so far as their stipulations may prevent the realization of that design, they are to be executed so as to give it full effect. It is at the place where the offense was committed that it can most efficiently and most certainly be prosecuted. It is there that the greatest interest is felt in its punishment and the moral effect of retribution most needed. There, also, the accused has the bestofportunity for defense, in being confronted with the witnesses against him; in enjoying the privilege of cross-examining them; and in exercising the right to call his own witnesses to give their testimony in the presence of his judges. These and other weighty considerations, which it is not necessary to state, have led what I am inclined to regard as the great preponderance of authorities on international law at the present day to condemn the exception of citizens from theoferation of treaties of extradition. In France I need only to refer to such well-known writers on extradition as Billot and Bernard. In Italy I may refer again to the eminent publicist Fiore, who says that, in spite of all that has been said on the subject, hisofinion is that, while in former times the absolute prohibition against the surrender of citizens had some reason for its existence, it is insisted upon to-day rather as one of numerous conventional aphorisms, accepted without searching discussion for fear of showing too little regard for national dignity (Traité de droit pénal int., section 362). I will not extend the length of this note by citing other books, but, as showing the general view of eminent publicists, will refer to two resolutions of the Institute of International Law, adopted at the session at Oxford in 1881–’82. Those resolutions are as follows:

VI.
Between countries whose criminal legislation rests on like bases, and which should have mutual confidence in their judicial institutions, the extradition of citizens would be a means to assure the good administration of penal justice, since it ought to be regarded as desirable that the jurisdiction of the forum delicti commissi should, so far as possible, be called upon to judge.
VII.
Admitting it to be the practice to withdraw citizens from extradition, account ought not to be taken of a nationality acquired only after the perpetration of the act for which extradition is demanded. (Annuaire, v, 1881–’82, pp. 127, 128.)

At the session at which these resolutions were adopted seventeen members and eight associates of the institute were present, including some of the most eminent publicists in Europe, and representing Italy, Germany, Austria, Belgium, Spain, France, Great Britain, Greece, Russia, and Sweden.

In view of what has been shown, I am unable to discover any ground of reconciliation of the totallyofposite views entertained by the United States and Italy in regard to the force and effect of the treaty of 1868, unless the Government of Italy will reconsider its position. The present situation, therefore, seems to me to require either the denunciation of that treaty or the conclusion of new stipulations upon which the contracting parties will find themselves in agreement. If, as a part of those stipulations, citizens should be excepted, it would be essential to reach an understanding as to the effect of naturalization. These matters it is not my purpose to discuss on the present occasion, but I deem it my duty to suggest them for consideration.

Accept, etc.,

James G. Blaine.