Mr. Butler to Mr. Olney.

No. 40.]

Sir: In continuation to my No. 38, of the 25th instant, I have the honor to submit copies of additional papers in the matter of the extradition of Chester W. and Richard Rowe.

These papers include two notes from Mr. Mariscal—of the 22d (received on the 26th) and the 29th instants—declining to grant the extradition of Chester W. Rowe, and reserving decision as to the extradition of Richard Rowe until the arrival of the requisite papers.

I am, sir, etc.,

E. C. Butler.
[Inclosure 1 in No. 40.—Translation.]

Mr. Mariscal to Mr. Butler.

Mr. Chargé, etc.: I received two notes, dated the 18th of the current month, in the first of which you communicated to me that your Government had sent you instructions to request from the Mexican Government the arrest and detention of Chester W. Rowe (alias Rose) and of Richard Rowe (alias Rose), charged, the former as principal and the latter as accomplice, in the crime of embezzlement of public moneys, to the end that they might be surrendered, in virtue of the extradition treaty between Mexico and the United States, to Mr. William Farmer Forsee, authorized to receive them, and that the papers requisite under the treaty would be delivered to this department, which papers were about to arrive; while in the second note you advised me that the said Farmer Forsee was charged to deliver to me the papers relating to the extradition of Chester W. Rowe, while these relating to the extradition of Richard Rowe would be subsequently submitted to me.

That same day, the 18th, Mr. Farmer Forsee placed in my hands the papers referred to, of which he was the bearer. This department ordered the arrest of the two parties accused and they were secured under safe custody; the police officers effecting the arrest taking from Chester W. Rowe a lease contract for safety box No. 300, which the International Mortgage Bank of Mexico had made out on the 29th of April last with Señor E. P. Rose, and which lease contract had been forwarded to this department.

It was ascertained forthwith that Chester W. Rowe acquired Mexican citizenship by naturalization by reason of the purchase of real estate in this federal district, as provided in the constitution of the United Mexican States (article 30, section 3), as declared by the President of the Republic on the 24th of June last.

For the reason assigned, the President has been pleased to decide on refusal of the request for the extradition of Chester W. Rowe, while action on the request for the extradition of Richard Rowe is to be held in abeyance pending the arrival in this department of the requisite papers.

Although the extradition of the first-named party is denied, and therefore he should be forthwith liberated, it has been decided to hold him in [Page 1003] custody, and that he be consigned to the prosecuting attorney of the federal district, to the end that this official may, ex officio and in accordance with the laws, institute the necessary proceedings before the courts looking to the investigation and punishment of the crime attributed to Chester W. Rowe, the case falling within the scope of article 185 of the penal code; for in event of the existence of the crime, such crime continues by commission in the Republic while the responsible party retains in possession the stolen property, as your legation believes in this case (vide your first note now under reply), and as is also presumable from the finding upon the person of Chester W. Rowe of the lease contract of a safety box in the International Mortgage Bank of Mexico, as above referred to.

This contract (or receipt), together with the documents filed by Mr. Farmer Forsee, and to which I have just referred, have been sent to the prosecuting attorney for the ends stated. You can furnish to said official any other information conducive to place him in position to prove the guilt of the accused, advising that, once he is consigned to the court, he must, within the period of three days, be declared formally committed to imprisonment or placed at liberty, according to the nature of the evidence submitted.

I reiterate, etc.,

Igno. Mariscal.
[Inclosure 2 in No. 40—Translation.]

Article 185.

In regard to continuous offenses, the commission of which was previously begun in a foreign country and continues in the Republic, the offenders, whether Mexicans or foreigners, shall be punished in accordance with the laws thereof.

[Inclosure 3 in No. 40.]

Mr. Butler to Mr. Mariscal .

Dear Sir: I have just received your excellency’s note of the 22d, advising me that Chester W. Rowe and Richard Rowe were arrested, as requested by this legation; that upon the person of the first-named party was found a receipt dated April 29 last, made out to Señor E. P. Rose for a safety box at the International Mortgage Bank of Mexico; that as Chester Rowe had on the 21st of June last acquired Mexican citizenship by the purchase of real estate within the federal district, his extradition would be declined by the Government of Mexico, while action on the request of the Government of the United States for the extradition of Richard Rowe would be held in abeyance pending the arrival of the requisite papers; that although the refusal to surrender Chester W. Rowe should operate to place him at liberty, he would be held subject to the action of the courts of Mexico under the provision of article 185 of the Mexican Penal Code for the attributed crime of retention of stolen property.

I beg to reiterate to your excellency, etc.,

E. C. Butler.
[Page 1004]
[Inclosure 4 in No. 40.]

Mr. Butler to Mr. Mariscal.

Dear Sir: Since addressing your excellency this afternoon, responsive to your note of the 22d instant relating to the extradition of Chester W. and Richard Rowe, I obtained an audience with Hon. Agustin Boyes, prosecuting attorney of the federal district, and arranged for the appearance before him of Messrs. William Farmer Forsee and W. L. Buston as witnesses against the two parties named.

This I did pursuant to the closing suggestion in your excellency’s note referred to, and beg herewith to renew the assurances, etc.

E. C. Butler.
[Inclosure 5 in No. 40—Translation.]

Mr. Mariscal to Mr. Butler.

Mr. Chargé: I have the honor to answer the note dated the 25th of the current month, which you have addressed to me, inclosing statement signed by W. F. Forsee, agent for the extradition of C. W. Rowe, and by his attorney, Lie. Don Francisco Alfaro, requesting that in virtue of reasons set forth in said statement, and the opinion of the Government of the United States, which you were pleased to communicate to me on the 23d instant, the extradition of the party named might be granted.

In the first place I should state to you that your said note, and the statement accompanying the same, reached my hand on the night of the 25th, the day upon which it was dated, advising that in my dispatch of the 22d I had communicated to you the decision of the President declining to grant extradition of C. W. Rowe, and consigning him to the prosecuting attorney for trial before the criminal court. Therefore, when I received your note the matter had been already consigned to the prosecuting attorney, and probably had been by him referred to the judge, who now has jurisdiction over the accused. The President is therefore now without authority to pass upon the case, and only in case the judge should declare himself incompetent to try it could the matter of extradition be treated again. Due to this, the discussion of arguments contained in the statement of Mr. Forsee, as well as any stipulating the high opinion of the Government of the United States in this case, do not have practical, or at least, immediate effect.

Nevertheless, desirous of demonstrating that the decision of the Mexican Government is based upon just grounds and very clear reasoning, in addition to setting forth the reasons given in my said dispatch of the 22d, I will here add that all the allegations in the statement of Mr. Forsee, with one sole exception, go to demonstrate the serious trouble of not delivering a naturalized citizen, responsible for a crime committed in another country before his naturalization; such inexpediency resulting in the immunity of the party whose extradition is requested. However, in the case in question, such immunity does not exist, for C. W. Rowe shall be tried in Mexico, in accordance with [Page 1005] Mexican law which allows for the punishment of crimes committed abroad, especially that of the embezzlement of funds under false pretenses, provided always that the party guilty preserved such funds in his possession, which, according to those who have moved in the extradition, is the case at issue.

Unless a competent tribunal declares that the naturalization of C. W. Rowe is null and void, we shall consider it as valid and of effect (as was really the case) in accordance with the laws of Mexico. This validity is a point which does not allow of discussion, and whereon the Mexican Government would not be disposed to make any admission, even if placed upon the “via diplomática,” basing such disinclination upon the principles declared by the Government of the United States itself, of which I do not here make mention, as it does not seem to be necessary. Therefore, this Government believes itself in duty bound to consider Rowe a Mexican. The extradition treaty in force between the two countries excludes from any obligation of delivery for the purpose of trial all natives of the country upon which such requisition is served. Thus, this Government is not obliged to deliver G. W. Rowe, even though it might entail the unfortunate consequences of a precedent in impunity which, however, in this case, are not to be feared. Aside from the treaty the only grounds upon which apparent right to request the extradition of Rowe might be predicated are as follows:

What is being styled the “fraudulent character” of his naturalization.
His incompetency to free himself from criminal responsibility had by him in his native country for, it may be said, a retroactive effect can not be given to this act. The so-called “fraudulent character” in naturalization proceedings did not exist in this case, for the facts set forth by Rowe upon his seeking naturalization did exist as stated, and they come within the scope of law, the very constitution of this Republic, to wit, the naturalization of a foreigner acquiring in Mexico real estate. This does not require that the intention shall be this or that, or that it shall be, or shall not be, in consonance with the ends of universal justice. Nor does it require the even directly expressed intention of the interested party; it declares to be a Mexican any foreigner who acquires real estate, and omits to set forth his desire to preserve his previous nationality.

In view of a declaration so positive, it is useless to allege that there was fraud, not in the naturalization itself, which was according to the law, but in the end or intention, whereby C. W. Rowe procured the same, for the hidden intention moving in such cases does not produce, even when unmasked, any legal effects.

On the other hand, even when the procedure attributed to Rowe serves to swerve the justice of his native country, it is not be allowed in numerous cases, among them the one in question, to vitiate the ends of justice in Mexico. If, in the conduct of any remote cases, the Mexican naturalization of a foreign offender might produce the effect of leaving him untouched, this is the unavoidable consequence of limitations which, as yet, hedge about extradition in all countries, even those most advanced, as occurs in the United States, where neither the law on extradition, neither the treaties thereon embrace the perpetrators of all common crimes, for which reason many remain unpunished, and seek refuge in American territory. There is also impunity inevitably in your country for those who hide the fact that they have committed a crime in another country, for in the United States, as a general rule, crimes committed abroad are not punished.

[Page 1006]

Mexican legislation, therefore, does not offer more serious obstructions than does the legislation of other nations. On the contrary, under our legislation, such impunity is very rare, and allows for the punishment in Mexico, in many cases, of a crime committed abroad, as in the case of C. W. Rowe.

The second allegation which might seem to support the request for extradition, now refused, is, as I have before stated, the statement that the naturalization, although legitimate, is insufficient, and to do away with the criminal responsibility that Rowe assumed in his own country. However, to declare such naturalization as insufficient for anything would be to place limits thereon, whereas it is not limited, under the law, the only agent that could so limit it (and certainly did not do so), for among us every naturalized citizen has the same rights which a native citizen has, with no other restriction than that of not being allowed to hold certain public positions which require birth in Mexico. On the other hand, to say that retroactive effect is given to the naturalization of Rowe would be completely erroneous, for he has not had attributed to him the character of a Mexican in acts which he performed before becoming one, but considered as vested with our nationality, as he already is, at the moment his extradition was sought. This is denied, for Rowe being a Mexican, in virtue of law, there is no obligation to deliver him in case of any act which occurred at any time.

Before passing to other considerations, I shall examine the value to the question in hand of a fact alleged by Mr. Forsee’s attorney. It is said, and it is true, that in the treaty of extradition in force between Mexico and Spain, there is an article (the fourth, in its second part) whereunder it is agreed that the naturalization of a subject or a citizen of either of the contracting countries shall not operate to prevent the delivery, and for an offense committed prior to such naturalization. The article does say so; but it does not therein set forth that such is a principle of national right for general application, but a special stipulation of said treaty, inapplicable therefore to other nations, which can not invoke its provisions, even in case they seek to allege for themselves most-favored-nation treatment. It was decided in the United States as follows, when Attorney-General Caleb Cushing said:

Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of the treaty, and are not to be inferred from the favored-nation clause in treaties. (6 Op., 148 Cushing, 1853. Authority confirmed by J. C. B. Davis in his notes; vide Wharton, Digest of International Law, 135.)

There is, therefore, no ground upon which to base the request for extradition of C. W. Rowe; there would only be the possibility of requesting the same as a discretional act of Mexico, based upon mutual conformity, or as a token of deference toward the Government requesting the same.

Mutual conformity or agreement does not exist in this case, for it should be predicated upon some act of reciprocity expected from the United States by Mexico, and this is impossible, for your Government has not as yet measured up to the conduct of this Government, which in 1877 delivered up some Mexicans, although the extradition treaty did not oblige them to do so, at the same time receiving a promise of reciprocity, which has not been redeemed.

So far as concerns the disposition of the Mexican Government to show itself deferent to your Government, such disposition is upon our part, great and sincere, subject, however, as is natural, to other conditions of justice and expediency. What this Government did once, when it sacrificed delicate national sentiments, whether they be just or not, [Page 1007] against the delivery of a Mexican, it would do again in like circumstances. It can not do so in the present instance for the circumstances are radically different. Not only does it see that it can not obtain reciprocity in action, but this is not a case, as it was then, where a capital crime is involved, one wholly extraordinary—an assassin menacing the frontier of both territories. Of course, the crime at issue is repugnant, as all crimes are, but it is not of colossal proportions, nor is it a crime such as horrorizes humanity. Therefore, there is not sufficient reason to justify a waiver of the general rule which admits of delivery (without reciprocity) of one’s own citizens.

It seems to me unquestionable that when this Government follows up its refusal of extradition of Rowe, by his committal to the Mexican courts for trial, it could not in justice be required to do otherwise. It has complied with the moral obligation which rested upon it in this regard, an obligation at all times alternative, i. e., the delivery of an offender, or his trial, if the laws so permit. This doctrine is very ancient, and is based upon opinion of the writer who can be styled the “father of international law,” who expresses himself as follows:

A people or a King are not obliged specifically and indispensably to deliver over the guilty, but either to deliver or punish them. (Grotius, De Jure Belli ac Pacis, lib. 2, chap. 21.)

James Wharton, quoting the Secretary of State (Frelinghuysen), in the Trimble case, says the following, the application of which to ourselves is so marked:

When the question is one of discretion, the better rule is that wherever by the jurisprudence of a particular country, it is capable of trying one of its subjects for an offense alleged to have been committed by such subject abroad, the extradition in such case should be refused. (Digest of International Law of the United States, par. 273.)

Otherwise, if the Government of the United States is of the belief that it can remedy the ill results incident to any possible immunity of offenders, who may take out letters of naturalization in Mexico, and that the remedy might be found in a new treaty, this Government, which, on its part, has met with serious difficulties in consequence of procedure observed in extraditions requested by your country, would be disposed to negotiate a new treaty upon this important matter, and to such effect would transmit instructions to its minister at Washington for negotiations for a treaty to substitute the treaty of 1851, now in force, in order to do away with the difficulties brought to the surface in the matter by experience.

I reiterate to you, etc.,

Ig. Mariscal.
[Inclosure 6 in No. 40.]

Mr. Butler to Mr. Mariscal.

Dear Sir: I have the honor to acknowledge the receipt of your excellency’s note of to-day in relation to the extradition of Chester W. and Richard Rowe.

With assurances, etc.,

E. C. Butler.