Mr. Clayton to Mr.
Hay.
Embassy
of the United States,
Mexico
,
October 24,
1903.
No. 1996.]
Sir: I have the honor to acknowledge the
receipt of Department’s telegraphic instruction of the 15th instant.
I was sick at Cuernavaca when it came, and the delay in its execution is
explained by the following quotation from a letter from Secretary
Hoefele to me of the 20th instant:
I regret to inform you that owing to what appears to have been
carelessness on the part of some servant at your house a
telegram from the Department, dated the 15th, only came into my
hands this morning. Mrs. Clayton sent it to me with a note,
saying that she found it stuck in between some papers on her
table. I immediately sent the request to the foreign office, in
accordance with the instructions you gave me in the matter
before your departure.
Before leaving for Cuernavaca, in expectation of such instruction and for
the facilitation of its execution, I signed an application for the
arrest and provisional detention of Kratz, leaving the date blank, which
Secretary Hoefele filled in, and handed the application to Mr. Algara
upon the morning of the 20th instant. This application did not promise
in the exact language of your instruction strict reciprocity and
compliance with Mexican law. In view of the delay referred to Mr.
Hoefele thought it best to send the application as drawn by me, which
the Mexican Government has accepted as sufficient. As I understand the
Mexican law there must be two promises of reciprocity—first, of
provisional detention; second, of surrender. In the preparation of the
requisition in this case, unless the Department otherwise directs, I
shall include a promise of strict reciprocity and full compliance with
the Mexican extradition law of May 19, 1897 (see article 4).
On the 21st instant I telegraphed Mr. Algara as follows:
Very important provisional detention requested yesterday should
be executed with utmost dispatch.
Upon the same day I received his reply stating that the arrest of the
accused had been effected at Guadalajara on the 20th instant, and that
thirty-five days would be allowed for the presentation of papers in the
case.
On yesterday, not receiving the physical relief at Cuernavaca I had hoped
for, I returned to this capital and to-day Secretary Hoefele has handed
me a note from the foreign office, copy inclosed, received at the
embassy on the evening of the 22d instant, after office hours, relating
to the provisional detention of Kratz, and to questions which doubtless
will be raised in the extradition case. The minister’s reference, in
paragraph 3 of said note, to article 2, is doubtless an error, [Page 677] and should be article 13. I
have to-day replied to said note, copy inclosed. In this reply I did not
deem it wise to express my personal views as to the questions referred
to by Mr. Algara; doubtless the Department will prefer to refer these
questions to its law officer.
I believe it safe to assume that this extradition case will be fought by
Kratz and his friends with the utmost vigor and with the best lawyers
that money will command, at every stage of its proceedings, doubtless
ending at last in the supreme court of the Republic, which court I do
not think will overrule the decision of the executive department,
whatever it may be.
I inclose a copy of my telegram of the 22d instant to Mr. Algara,
expressing my high appreciation of the prompt and effective action of
his Government in the arrest of Kratz.
I have, etc.,
[Inclosure
1.—Translation.]
Mr. Algara to
Mr. Clayton.
Department for Foreign Affairs,
Mexico
,
October 20, 1903.
Mr. Ambassador: I have received the note of
even date, in which, in the name of your Government, your excellency
is pleased to ask for the provisional detention of the American
citizen Charles Kratz, accused of the crime of bribery committed in
the State of Missouri.
Your excellency is pleased to add that Kratz’s arrest has been
ordered by competent authority, and to promise reciprocity in every
like case, and to present the demand with the proofs of fact and law
required by the Mexican law of extradition of May 19, 1897.
The petition contained in your excellency’s note to which I refer is
in accordance with the precepts of article 2 of the said law, and in
this view the Executive has had no objection in granting it, and has
consequently directed the governor of the State of Jalisco to
procure the detention of the accused, fixing the term of thirty-five
days for the presentation of the extradition papers in due form.
I think it proper to make a statement of this case: In May, 1902,
your excellency was pleased to ask, by direction of your Government,
for the extradition of Kratz for the said crime of bribery, and this
department did not grant the said petition for the reason that the
offense was not included in the treaty of February 22, 1899.
Promise of reciprocity and submission of the Government of the United
States to our general extradition law were not offered at that time
by the Government of the United States.
A remedy was found for this condition by the celebration of an
agreement between Mexico and the United States by which the crime of
bribery was added to the list of those included in the treaty of
1897.
The new treaty went into effect on July 25, 1902, and the
difficulties which attended cases like that of Kratz were obviated
for the future, but not for the one in question, as the embassy
understood that the Mexican Government could not give retroactive
effect to the treaty, and apply it to cases which had arisen before
its celebration.
In this state of things, after conference had been had with the
undersigned with regard to the antecedents referred to, your
excellency was pleased to present the petition for extradition
contained in the note to this department to which I reply.
It has been said, even by the press, that the Government of the
United States did not give retroactive effect to treaties of
extradition, an opinion with which this department does not concur,
as already stated, for the reason that extradition is like a
criminal cause—it has the same results, and that which could not be
admitted in a criminal cause can not be accepted in a proceeding for
extradition.
This department respects the opinion in question of the United
States, the basis of which it does not know and which it would like
to know, because of the gravity of the point and the legislation of
both countries being very similar.
Putting aside, then, in view of what has been set forth, the
retroaction, the difficulty as to grant or not to grant the
extradition remains, in view of that which is established by our
general law on the matter, article 1, Section II, concordant to
article 32 of the said law.
[Page 678]
“In the absence of an international stipulation, the stipulations of
this law shall be observed.” This is the text cited: Should it be
understood to mean that a treaty having been celebrated under it,
and nothing more, can extraditions be granted, limiting the powers
of both Governments to the letter of the treaty? Or, on the
contrary, without prejudice to the precise fulfillment of the
treaty, are they empowered to grant extraditions under the
principles admitted by their respective legislations, and with due
regard to the formalities required?
In the United States the principles which govern extradition are
rigorous, and it appears that the Department of State does not grant
extradition outside of the treaties, and does not consider that the
President has power to act in that sense, with promises of
reciprocity or other things, to other States.
The rules observed by Mexico are not so restrictive, although it must
be remembered that they are not to be in any wise considered
obligatory; but, on the contrary, altogether voluntary on the part
of the Executive of the Union, who will act in all cases, in
accordance with the circumstances, with all justice and
prudence.
Be this as it may, the United States, in formulating its petition for
the extradition of Kratz, has conformed to our law of extradition,
has promised reciprocity, and later will extend this promise to all
the points included in article 4 of the said law. Such being the
case, the President has found no objection to ordering the immediate
provisional arrest of Kratz, in the terms expressed above, the
proper extradition suit to be begun so soon as the same may be
effected.
The legal exceptions that may be presented in this cause, herein
superficially indicated to your excellency, and it is possible that
they may be amplified and added to by the suspect, must all be taken
into consideration by the district court of Jalisco, and afterwards
by this department, in the terms, of which your excellency is aware,
established by law, and finally by the federal court in appeal for
amparo, which may be interposed by the suspect in a case of adverse
decision by the district judge or by this department.
In view of the peculiar circumstances in the case of Kratz, the
interest manifested by the Government of the United States in his
extradition, and the character and gravity of the crime of which he
is accused, the President has granted the demand presented by the
Government of the United States, without prejudice to the judicial
questions mentioned.
I have formulated this statement because of the importance of the
matter, in view of the circumstances of law and fact presented,
believing that the Executive has acted in the case in a manner
corresponding to the friendly relations which unite the
countries.
I renew, etc.,
[Inclosure
2.—Translation.]
Mr. Algara to
Mr. Clayton.
[Telegram.]
Mexico
,
October 21,
1903
.
Suspect was arrested yesterday at Guadalajara. Thirty-five days
allowed for presentation of papers.
[Inclosure 3.]
Mr. Clayton to
Mr. Algara.
Embassy of the United States,
Mexico
,
October 24, 1903
.
Mr. Secretary: I have the honor to
acknowledge the receipt of your excellency’s note of the 20th
instant, received at this embassy on the afternoon of the 21st
instant after office hours, relating to my late request for the
arrest and provisional detention of Charles Kratz, charged with the
crime of bribery in Missouri.
I do not understand that in May, 1902, I requested the extradition of
Kratz, but that Mr. McCreery, then chargé d’affaires ad interim, on
the 1st of May of that year informally asked Mr. Mariscal whether
the Mexican Government would consider a request for such
extradition, informing him at the same time that the Government [Page 679] of the United States could
not promise reciprocity. Mr. Mariscal replied that the request could
not be considered under the extradition treaty, nor could it be
under the extradition law without the promise of reciprocity. This
ended the matter for the time being, and no request for the
extradition of Kratz was then made.
In the third paragraph of your excellency’s aforesaid note the
following language occurs: “The petition contained in your
excellency’s note, to which I refer, is in accordance with the
precepts of article 2 of the said law.” Should not the article in
question be 13 instead of 2?
I note that the forty-five days’ period of provisional detention,
verbally agreed upon between your excellency and myself, has been
reduced to thirty-five days. I presume, however, that the period
thus reduced will be sufficient to enable my Government to comply
with the subsequent formalities.
I have to-day forwarded to the Department of State at Washington a
copy and translation of your excellency’s note. To the questions
foreshadowed therein it will doubtless give careful consideration,
and I thank your excellency for thus indicating them.
I avail, etc.,
