Mr. Sherman to Mr. Romero.
Washington , December 17, 1897 .
Sir: I have the honor to acknowledge the receipt of your note of the 15th instant in reply to the refusal of this Government to grant the extradition of Jesus Guerra.
While it is not the usage of the Department to enter at large into the reasons of its decisions in such cases, yet the ordinary usage is [Page 409] departed from in this instance, as well from the sense of respect and deference for your excellency’s wishes and opinions as to exhibit more fully to your excellency’s consideration the reasons on which the decision was reached.
While unable perhaps to concur in the correctness of the conclusion reached, nevertheless your excellency will appreciate that the decision was arrived at after a most careful consideration of the premises and was actuated by a spirit of comity and absolute equity.
In the communication to your excellency of the ground of the refusal to grant the extradition, the language which was used appears not to have been felicitously chosen, since in your excellency’s communication that reason is stated as follows:
Since the said evidence shows that the assault was revolutionary in its movement and object, crimes committed by a member of the expedition are of a purely political nature, and in consequence exempted from extradition in conformity with the treaty, etc.
With your excellency’s permission, I quote the precise language used in the note of the 13th instant, to which the reply was addressed:
From an attentive reading of that evidence it appears that Guerra was a member of the expedition making the attack, but it does not appear that he was implicated either as an abettor or participant in the commission of any offenses against private parties. Therefore, he is not culpable for these offenses committed without his privity, and as the evidence shows the expedition to have been revolutionary in its origin and purpose, the offense of being a member thereof was of a purely political character, outside of the purview of the extradition treaty between the United States and Mexico.
The discrimination between the decision actually rendered and as indicated in your excellency’s communication more clearly appears by reference to the petition filed before the magistrate for extradition, which charges Guerra with murder, to wit, shooting certain named Mexican officers and soldiers; with arson, to wit, the burning of the barracks; with robbery, to wit, the taking of cavalry horses, etc., with kidnaping, to wit, the taking of Mexican soldiers as prisoners. This is the gravamen of the charge; for while the complaint makes a vague general charge of robbery, it is so vague as not to warrant the detention or extradition of any man.
The decision was necessarily based on the complaint made and the evidence adduced in support of it, secundum allegata et probata. The ground of the decision, and what actually was decided, was that the evidence shows that the assault was revolutionary in its origin and object, and that the aforesaid acts, which were in aid thereof, being incidents of regular military warfare, can not be characterized as common crimes; that they were shown to be committed, not from motives of revenge or pecuniary gain, but for the political one of revolution. The evidence fails to show the presence of a merely criminal motive of the actors, except in so far as it may be inferred from the nature of the acts. But to argue that the acts themselves were intrinsically wicked and therefore demonstrate the presence of the intent characteristic of common crimes would have the effect in all cases of unsuccessful revolutionary movements, conducted by force and bloodshed, to destroy the right of asylum to political offenders and refugees. It was therefore by no means intended to be decided that since the assault was revolutionary, “crimes committed by a member of the expedition are of a purely political character.” The decision was that, as the movement was revolutionary, acts done in aid thereof are not common crimes; and as Guerra was not implicated, either as principal or accessory, in the commission of offenses against private persons, the [Page 410] guilt of such crimes could not be imputed to him any more than if, during a lawful political assemblage, some one of those present should commit a lawless act could the commission of that offense be imputed to the entire assembly.
Your excellency observes that—
If the assault on San Ignacio was not of a purely political nature, * * * the persons who took part in the same are responsible for the crimes committed, even if they did not personally commit them, inasmuch as the crimes were committed by the organization created by the assailants, and in virtue of the direct cooperation of all, although they may not personally have committed them.
Without assenting or dissenting from this position in the absence of a distinct understanding of what is meant by the assault being “not of a purely political nature,” it may be observed that if what is meant that when the movement is revolutionary in its origin and object it ceases to be of a purely political character, because lawless acts not germane to the object of the movement may be committed by individuals without authority or privity of their leaders or associates, the contention, if interpreted in that sense, could not be acceded to, since it would be an unwarranted extension of the doctrines of principal and, accessory so as to implicate all political offenders engaged in the same revolutionary movement in the guilt of such acts and render them all common criminals. If it is meant that the expedition had a dual object, to wit, the overthrow of the Mexican Government and the plunder of the Mexican people, the two objects would seem inconsistent, except so far as the overthrow of organized resistance was incidentally necessary to the pursuit of plunder. The evidence wholly fails to show that object; the course pursued by the expedition seems utterly inconsistent with that object, for after the Mexican soldiery had been captured or disabled in battle and all resistance overcome, and San Ignacio and the surrounding country lay at the mercy of Benavides and his followers, and pillage was at length within their easy grasp, the evidence fails to show any attempt to pursue and accomplish the very thing which your excellency deems to have been the main or sole object of the assault.
The point on which the decision turns is the question of fact whether the expedition was organized and conducted for the accomplishment of a political object. This question your excellency passed over and conceded that it was partly political by the contention that it was not purely political; and Guerra’s extradition was sought on the assumption of fact that the expedition was either not political or at least was only partly so. And on that assumption guilt was constructively imputed to Guerra for all isolated acts of lawlessness committed by any other individual or group of individuals without his participation, cognizance, or privity. This would seem a dangerous extension of the doctrine of principal and accessory unsupported by any authority, and in the absence of which, or of evidence of his participation in such lawless acts, the ordinary presumption of innocence should prevail. Such is the humanity of the law.
The solution of the question in this case is complicated by the want of a definition of the phrase “crime or offense of a political character;” and by the further question of the significance and force of the term “purely” political. “What constitutes an offense of a political character has not yet been determined by judicial authority.” (In re Ezeta, 62 Fed. Rep., 997.) In the Castioni case (1 Q. B., 149) Lord Denman said:
I do not think it is necessary or desirable that we should attempt to put into language in the shape of an exhaustive definition exactly the whole state of things, or every state of things, which might bring a particular case within the description of [Page 411] an offense of a political character. * * * The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character, with a political object and as part of the political movement and rising in which he was taking part.
Judge Hawkins said:
I can not help thinking that everybody knows that there are many acts of a political character done without reason, done against all reason; but at the same time one can not look too hardly and weigh in golden scales the acts of men hot in their political excitement. We know that in heat, and in heated blood, men often do things which are against and contrary to reason; but none the less an act of this description may be done for the purpose of furthering and in furtherance of a political rising, even though it is an act which may be deplored and lamented, as even cruel and against all reason, by those who calmly reflect upon it after the battle is over. (62 Fed. Rep., 999.)
Calvo, speaking of the exemption from extradition of persons charged with political offenses, says:
The exemption even extends to acts connected with political crimes or offenses, and it is enough, as says Mr. Faust in Helio, that a common crime be connected with a political act—that it be the outcome of or be in the execution of such—to be covered by the privilege which protects the latter.
In the International American Conference in Washington, Mr. Silva, of Colombia, discriminating between an offense of a political character and a common crime, said:
In the revolutions, as we conduct them in our countries, the common offenses are necessarily mixed up with the political in many cases. A revolutionist has no resources. My distinguished colleague, General Caamano (of Ecuador), knows how we carry on wars. A revolutionist needs horses for moving beef to feed his troops, etc.; and since he does not go into the public markets to purchase those horses and that beef, nor the arms and saddles to mount and equip his forces, he takes them from the first pasture or shop he finds at hand. This is called robbery everywhere, and is a common offense in time of peace, but in time of war it is a circumstance closely allied to the manner of waging it. (62 Fed. Rep., 1000.)
Calvo says:
All treaties, except that concluded between Belgium and the United States April 30, 1874, article 3, declare the general rule that extradition shall not be accorded for an act connected with a political delict without discriminating whether the separation of the delicts can be made. The connected delict is considered as an incident of the principal delict and is excluded from extradition
We consider as delicts of common, law those which are connected with political events only in a very indirect manner—those which have been committed in favor of the insurrection without being otherwise related to it; that is to say, those which a private vengeance or personal hatred has inspired, as for example, the murder of an adversary, the burning of his house.
We regard as criminals at common law the perpetrators of acts connected with the insurrection but which the law of nations disavows; for example, those who assassinate hostages, prisoners.
The practice is more favorable to the authors of such acts; none of the members of the commune, refugees in foreign lands in 1871, has been surrendered to France by the various powers. (Calvo (Paris, 1896), Droit International, sec. 1036.)
The treaty with Belgium, referred to by Calvo, by a special exception, makes certain “connected” crimes extraditable. In his opinion in all our other treaties “connected” crimes are not extraditable.
Rivier advocates the extension of extradition treaties so as to include the more heinous offenses, regardless of the political motives or objects of their authors, yet he says:
The political offense for which extradition should never be granted is the act considered as punishable solely and exclusively because of its political character. These are absolute political offenses. The qualification according to which the offense should be characterized as such and punishable by similar analogous penalties in the two States will suffice in the majority of cases to exclude extradition. If offenses which do not constitute common crimes, exhibiting the gravity just now characterized, have been committed with a political object, this object can, in the view of the [Page 412] impartial and disinterested State, impart to them a special character different from that which they would have if they had been committed for the purpose of gain or of political or private revenge. These are offenses connected with political offenses, which may thus he called relative-political; that is, not absolute. They have a political character by reason of their object, and this political character may suffice to exclude extradition. We are considering now the political object which the accused has wished to attain. We are not considering a political motive; a political motive does not suffice to give to an offense the political character relieving the requested State from the duty of extradition. It follows, moreover, from the very tenor of the most of the extradition treaties, that when they exclude political offenses, it is precisely connected, complex, or relative-political offenses which are meant, the non-extradition for absolute political offenses being considered as implied. (Rivier, Principles du Droit des Gens, p. 353).
Had it not been for the use of the word “purely” in the treaty Guerra was clearly not extraditable, since the evidence adduced by him stood uncontradicted that the object of the expedition was political. Does the term “purely “extend the scope of the right to extradition? According to Rivier it is tacitly implied in all extradition ‘treaties that when they exclude political offenses, connected or complex crimes are not included, since crimes of an absolutely or purely political character are excluded by implication, and the use of the word “purely,” therefore, according to Rivier, would seem not to give any extension to the right of extradition. If, however, it does not give any such extension it must be by construction, since the meaning of the term is not defined by treaty; but the right to personal liberty may not be taken away by mere judicial construction, especially where, in cases of doubt, the obligation of extradition is interpreted in a limitative manner and in favor of the right of asylum.
But it not being necessary to decide the question whether or not the word “purely” should be construed to extend the right of extradition between the two Governments, it may be suggested that it receive in this case the construction contended for by your excellency, namely, that a private offense committed by one or a few members of a revolutionary body should be imputed to all the rest of that body, although the rest may not have been in anywise privy to it, it would in effect make all political offenses extraditable, since there perhaps never was a political revolution without some of the elements of lawlessness attending it, even against the will of its leaders. Such construction would also put the ban of the treaty on all political revolutions conducted by force and violence, and subject all engaged in them to extradition for acts done causing bloodshed and the capture of prisoners and their equipments.
In your excellency’s note it is stated that—
Your two predecessors, as Secretary of State, and the Supreme Court of the United States decided that the assault at San Ignacio was not an offense of a purely political character. You now inform me that the evidence shows that the assault was revolutionary in its origin and purpose, and that consequently its character was purely political. This decision, which is contrary to that expressed by your two predecessors and by the Supreme Court, reverses the decisions granted by them after mature consideration.
Being unable to assent to the above conclusion as a whole, I beg leave to suggest to your excellency that, as shown by your excellency’s communication, Secretary Gresham decided the same question twice, and in opposite ways, the then solicitor of this Department concurring with his first decision that the offense was of a purely political character, while Secretary Olney does not appear to have rendered any opinion at all; and if there appear any aberration of decision on this question it does not appear in the decision now under consideration, since, with the single exception mentioned by your excellency, this decision is in [Page 413] harmony with all former decisions of this Department on analogous states of fact having the same essential legal character.
In support of this statement, I would respectfully call your excellency’s attention to the decision by Secretary Bayard, on February 17, 1897, in the Cazo case, and other decisions cited in Moore on Extradition, section 217 and notes; Wharton’s Digest of International Law, section 272.
Being unable to concur in the conclusion expressed by your excellency that the Supreme Court decided “that the offense of which Ines Ruiz, Jesus Guerra, and Juan Duque (were accused) were of a common order and not of a purely political character,” it is due to the distinguished consideration entertained for your excellency’s opinions that the grounds of this dissent be stated.
In deciding cases it not unfrequently happens that the courts use, arguendo, expressions which are not intended to be taken in all their literal amplitude of meaning, but their meaning is restricted to and construed in connection with what is actually decided. The judgment itself determines what is decided. And what the Supreme Court decided in this case is expressed in the concluding paragraph of its opinion:
We are of the opinion that it can not he held that there was substantially no evidence calling for the judgment of the commissioner as to whether he would, or would not, certify and commit under the statute, and that therefore, as matter of law, he had no jurisdiction over the subject-matter; and this being so, his action was not open to review on habeas corpus. (Ornelas v. Ruiz, 161 U. S., p. 512.)
From which it does not seem that the Supreme Court decided “that the assault at San Ignacio was not an offense of a purely political character.” What it did decide was, that there was evidence calling for the decision of the commissioner one way or the other, and that, on the state of the case, the Federal Court could not review his decision. The Supreme Court did not pass upon the weight or probative force of the evidence, nor any portion of it, since according to its own decision it had no authority to do so. I am therefore unable to share the regret expressed by your excellency that the decision of the Supreme Court has been reversed; and whatever regret may be felt at not apparently following the last decision rendered by Secretary Gresham, it is greatly lessened by the consideration that it is in harmony with the first decision rendered by that distinguished Secretary and with the decisions rendered on analogous states of fact by Secretary Bayard in 1887, and by Acting Secretary Hunter in 1880; and, in short, with every decision rendered by this Department since the negotiation of the treaty with Mexico in 1862; and in harmony with the traditionary policy of this Government.
Referring to the point made in conclusion in your excellency’s reply that “armed expeditions were organized for three years in Texas to attack the defenseless people of Mexico,” it may be observed that said consideration would have its appropriate and, doubtless, great weight with the treaty-making power, as such, in the formation of a treaty; but in the execution of the treaty the parties to it are bound by its terms and can not arbitrarily wrest if from its true intent for the accomplishment of political objects foreign thereto, however laudable those objects might be, and that in the absence of a treaty provision for the extradition of political offenders, the neutrality laws afford a remedy for hostile incursions of a political character across the border of the two countries.
In reaching this conclusion, the Department wishes to state that this [Page 414] is a very close case and the decision announced has resolved the doubts in favor of liberty.
It is placed upon the distinct ground that as far as Guerra is concerned, whatever others may have done, it does not appear from the testimony that he committed any extraditable offense, and for that reason could not be delivered. The Department is not prepared to say that others may not, in the same expedition, have committed offenses of a character which would warrant their extradition under the terms of the treaty. Should cases arise or further consideration of this matter be asked, the Department is at all times ready to hear any representation your excellency may wish to make, and when consistent with its sense of duty, to accede to the same. The Department feels that no less than this is due to friendly relations with the Government which your excellency represents with so much ability and fidelity at this capital.
Accept, etc,