Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President, Transmitted to Congress December 2, 1895, Part II
Mr. Butler to Mr. Olney.
Mexico, July 25, 1895.
Sir: I have the honor to confirm this legation’s cablegrams of the 20th and of even date in regard to the extradition of the Rowe brothers.
The latter telegram was sent upon my ascertaining, through a third party, but authoritatively, that it was the intention of the Mexican Government to refuse the surrender of Chester W. Rowe for extradition to the Limited States.
Inclosing copies of my two notes, of 23d and 25th instants, to Minister Mariscal, I am, etc.,
Mr. Butler to Mr. Mariscal.
Mexico, July 23, 1895.
Dear Sir: This legation was informed that Chester W. Rowe, recently arrested at the request of my Government for the purpose of [Page 999] extradition, intended to defend himself from extradition on the ground that he had assumed Mexican citizenship. That such citizenship was assumed by Rowe for the purpose of evading extradition can, if necessary, be established by the evidence of Mr. William Farmer Forsee, the extradition agent.
Having so apprised my Government, I received a responsive telegram, which I have the honor to quote, as follows:
In opinion of Department [Department of State] citizenship assumed for purpose evading extradition should not he allowed that effect. If Mexican Government refuse surrender Rowe on this ground, urge this view.
Trusting that, in case such plea as stated be made in behalf of said Rowe, the opinion of my Government may be duly borne in mind by your excellency, I beg to renew the assurance of my highest respect and esteem.
Mr. Butler to Mr. Mariscal.
Mexico, July 25, 1895.
Dear Sir: Most respectfully I beg to submit the statement prepared by Mr. William Farmer Forsee and his attorney, Sr. Lie. Francisco Alfaro, in the matter of the extradition of the Rowe brothers.
I beg that you will give this communication careful perusal and grant it due weight in the consideration of the case. Trusting that the opinion of my Government, as quoted to your excellency on the 23d instant, and the legal deductions set forth in the inclosed statement may lead your excellency to grant the extradition of Chester and Richard Rowe, I beg most sincerely to renew to your excellency the assurance of my highest consideration.
Messrs. Forsee and Alfaro to Mr. Butler
William Farmer Forsee, commissioned by the President of the United States of America and duly authorized to receive and conduct Chester W. Rowe to the United States, said Rowe having been accused of the crime of embezzlement of public funds, and his extradition having been solicited by the American Government, now begs that the legation will be pleased to support the following allegations proving the justice of such extradition.
The prisoners, Chester W. Rowe and Richard A. Rowe, who are here known under the alias of Rowes, taking advantage of the freedom of communication they now enjoy, on Saturday last executed a power of attorney before the notary San Martin in favor of Lie. Marieno Espejo, in order that the latter should represent them before the department of foreign affairs and all the tribunals, and with the object of resisting the extradition which the Government of the United States of America has solicited, of said prisoner. Now, they have proved, and perhaps they will base their defense on that point, that they are Mexicans through having purchased and being the owners of a lot in the neighboring town of Guadalupe; these facts give rise to some arguments which are founded on express and specific instructions from the Government of the United States.
Consequently, and although the legation is perfectly convinced of and has always applauded the justice and ability with which the Mexican Government acts in all questions that are referred to the department of foreign affairs, it ought to assist in [Page 1000] obtaining justice, by presenting the following arguments, to which I would respectfully call your attention.
Chancellor Kent considers it evident in principle and precedence, that every state is in duty bound to refuse its asylum to criminals, and even without a previous examination of the case, deliver the guilty absconder to the jurisdiction of the state in which the crime has been committed. This sound principle of international law, which is generally observed, can in the present case be applied without giving room for an answer, if an examination of the case furnishes convincing proof as far as regards the demonstration of the corpus delicti and the solicited extradition can not be denied through the malicious act of the accused, in having purchased property in the Republic, seeing that Section III of Article 30 of the federal constitution, in declaring that foreigners who purchase real estate in the Republic are Mexicans, could not include in that category the criminals or enemies of the country, because the former are unworthy of the citizenship which they claim, both because their criminal conduct renders them unworthy of entering another community, which can only expect injury from them, as well as because they desire that citizenship in order to obtain impunity, and thus evade the action of justice, which it is the general interest to protect.
Vincent and Pinaud, in their Dictionary of International Law, V, “Extradition,” page 332, say: “L’extradition a pour but, d’assurer le triomphe de la justice.”
The right of expatriation having been recognized by the Mexican law of foreign rights, the Republic admits the citizens of other countries and states, and grants them naturalization in accordance with the legal provisions. And if by naturalization we understand the act of investing a foreigner with the rights, privileges, and obligations which pertain to the natives of the country, it is necessary to determine when a man can break the ties that connect him with his mother country, in order to adopt those which will connect him with his adopted country. One of the cases in which that tie cannot be considered as broken, is that which gives rise to these observations.
In fact, the brothers Rowe, one of whom is the principal and the other the accomplice, have not been able to obtain Mexican citizenship with the object of liberating themselves from the liabilities they incurred in their native country, because the extradition treaty is not of a date subsequent to that of the criminal act, which was duly provided for in that treaty, as otherwise the change of nationality would have a retroactive effect, and would be against the principles of international law, seeing that the state is not an asylum for criminals, nor its naturalization a refuge to furnish impunity. It is for this reason that the law of the 28th of May, 1886, provides, in article 26, that the change of nationality shall have no retroactive effect. In support of the above, and in view of their applicability to the case, we beg to quote the words of the eminent Mexican jurist, Ignacio L. Vallarta, which can be read in page 90 of the Explanation of the Reasons for the Bill of Naturalization and Foreigners, which he wrote by instructions from the department of foreign affairs and which reads as follows (par. 110, art. 70.):
“Rather than an exception to the principle, article 8 of the bill establishes the rule which can not be ignored in the name of the right of expatriation. The citizen of a country who becomes naturalized in another after having committed those crimes which to-day can find no asylum in any territory and no protection under any flag whatever, can not plead his adopted nationality to escape the punishment which he deserves or avoid the extradition which is solicited by his native country.”
If Jefferson, who was interested in fomenting the immigration to the United States, could say that “they received every fugitive and no person in authority can take into account the offenses committed beyond their jurisdiction, and the most atrocious criminals are received as if they were innocent,” this claim can not now he sustained in view of the progress of international law, and he can not find any protection, even in countries which, like Mexico, are so greatly in want of immigrants.
If that law has already convinced different states of the principle that even their own citizens are subject to extradition; if the tendencies of this age are toward wiping out frontiers before the justice that pursues the criminals, the enemies of the human race, as said by Mr. Seward; if our own convenience, as has been said by England, not to mention the honor of each country, condemns the old theory that a territory should constitute an inviolable asylum for crime, far from presenting any difficulties, the provisions of article 8 do not show any cause for criticism that is not in approval.
No civilized nation will ignore the justice of our law. The advisability and convenience of article 8 will be more fully appreciated if we take into consideration that the treaty with respect to citizenship which has been executed between the United States and Germany, and with Mexico itself, provides for the observance of the extradition treaty at present in force between those countries, so that the naturalization shall not serve to protect the criminal.[Page 1001]
Besides this, our treaties respect this principle in foreign countries. In the treaty which has recently been concluded with Spain, after exempting the citizens of both countries from extradition, it says:
“For the purposes of this article, the foreigners who may be naturalized in Mexico or in Spain will not be considered as Mexicans or Spaniards if the offense was committed before the date of their naturalization.”
This agreement shows that in intention, if not in the text, it ought to appear in all treaties of extradition or naturalization which are executed by the Republic.
In view of the above arguments, it is expected that the extradition will not be refused, but before concluding this brief plea I consider it necessary to call your attention to a most important fact, and that is, that the naturalization which is taken as a pretext by the brothers Rowe in order to avoid the action of justice in the United States, is, as I have already said, fraudulent. I am perfectly prepared to prove this fact by means of witnesses, even though on the other hand the documents which have been presented clearly show the culpability of the person who has thus obtained Mexican nationality, and are in themselves enough to show the existence of a fraudulent intention. The result is that for one reason or another the person who deceives the Mexican Government must lose its protection. The same jurist, Lic. Vallarts, says as follows on page 128 of his work:
“Article 23 [I think he refers to article 22] is also taken from article 9 of the law of 1854, and is supported by the obvious principle that the concession of naturalization to famous criminals who may come to the country in their flight from foreign justice, besides compromising the interests of the latter, dishonor our own nationality. Although the bill, with all the precautions which have been adopted, avoids as far as possible the danger that a criminal of this character should become a Mexican, the case is not impossible, especially if we consider that it is easy for an incendiary or a foreign assassin to acquire real estate or have children in Mexico, and to take advantage of the facilities offered by naturalization for him to become a Mexican. In order to avoid any evasions or abuse of the law, the law declares that the naturalization granted to the guilty party who has been able to hide his crimes shall be legally null and void. Thus not only is the person who in a fraudulent manner has obtained naturalization, subject to extradition as provided in article 8, but all the effects of the naturalization are rendered void, as soon as it is duly proved to the authorities that it was fraudulently obtained the Government recovers its right to expel from the national territory, in the character of a pernicious foreigner, as provided by article 33 of the constitution, the person who abuses in such manner the hospitality which Mexico offers to foreigners.”
- W. F. Forsee.
- Lic. Francisco Alfaro.