Mr. Sherman to Mr. Romero.

No. 303.]

Sir: I have the honor to acknowledge the receipt of your excellency’s note of the 18th ultimo touching the extradition of Jesus Guerra, and again invoking the doctrine of stare decisis in support of your excellency’s contention. I concur entirely in your excellency’s opinion of [Page 416] the wisdom of a uniform rule of decision in all cases when the facts are of the same essential legal character. And from this standpoint the refusal to extradite Guerra finds sufficient vindication, since the refusal was in keeping with the uniform rule of decision in all such cases except in the single case, on which your excellency relied for the reversal of all other previous decisions.

I observe with pleasure—and it does great credit to your excellency’s character for candor and sincerity—the abandonment, in your excellency’s note, of the former contention that the Supreme Court decided that “the assault at San Ignacio was not an offense of a purely political character,” and the admission that the question for its decision “was not to determine whether the crime with which they were charged was or was not of a purely political character.” But the contention now made is that an isolated dictum of the Supreme Court is “not without force and is entitled to high respect.” In this opinion I fully concur, and as the court studiously refrained from deciding a question over which it virtually held that it had no jurisdiction, I should have felt wanting in respect to its great character had I imputed to it any intention to decide indirectly and with great impropriety what it could not do directly, and therefore abstained from doing.

I concur entirely in your excellency’s view that “when political pretexts are invoked to conceal common crimes,” such pretexts, or any others, can not be allowed to shield the guilty. But in the Guerra case there is such evidence to show the revolutionary character of the expedition, and no evidence to contradict it.

In the absence of any reference to historical evidence in support of it, I can neither assent to nor dissent from your excellency’s opinion of the object of the insertion of the word “purely” in the extradition treaty. The word is sometimes used interchangeably with the word “absolutely,” and if it is used in this sense, then, as shown in my last note, nonextradition for absolute political offenses is always implied in treaties without making any express exception; when they exclude political offenses, it is precisely connected or complex offenses which are meant.

It being unnecessary in this case to construe the treaty, no opinion is expressed as to the construction placed on it by your excellency. But it may be doubted whether it was the intendment of the treaty to include connected or complex offenses in the category of extraditable offenses. For, on the one hand, the exclusion of absolutely or purely political offenses is implied without express exception, while the express exception of political offenses excludes mixed or connected offenses; and, on the other hand, if so wide a departure from the traditional policy of this Government had been intended, it is reasonable to suppose that the inclusion of such offenses would have been clearly and specifically indicated, as was done in the treaty with Belgium. And if the intent in the insertion of the word had been such as your excellency supposes, it is remarkable that no allusion appears to have been made to it heretofore either in the Cazo case or in the case of the eight Mexican revolutionists, when extradition was refused for the same reasons as in this case.

Over thirty years have elapsed since the adoption of the treaty, and so far as I am informed the construction of the treaty now made by your excellency is made for the first time, and if it had been made and accepted in the two cases above mentioned, extradition should have been granted instead of being refused.

Accept, etc.,

John Sherman.