Washington, June 4, 1906.
The Department of State is in receipt of a memorandum, dated the 24th ultimo, from the British embassy, in regard to the case of Arthur McIntire, who has been sentenced to imprisonment in the United States for a nonextraditable offense after he had been brought back to this country on the charge of embezzlement.
While all the details of this case are not before the department, it appears that the prisoner, although surrendered for one offense, voluntarily submitted to be tried for another. In a case involving this principle which arose in 1895 the department informed the German embassya that this Government could not undertake to guarantee that a fugitive so-surrendered would not waive his privilege of exemption from trial, or that the courts, should he so submit, would refuse to try or punish him.
The question, however, being of a judicial nature, the appropriate remedy to pursue would appear to be for the prisoner to apply for a writ of habeas corpus whereby his rights could be judicially determined. The particular principle involved in this case seems never to have been authoritatively settled by the courts of this country, although it is authoritatively settled by the Supreme Court of the United States in extradition cases that a prisoner indicted for one offense can not legally be held or tried for an offense other than that for which he was extradited. An attempt to try a prisoner for another offense could be regarded solely as an abuse of extradition process. In this instance, however, it appears that the prisoner voluntarily appeared in court, and that by so doing he waived the right to the protection of the treaty of extradition. The question, however, is one of first impression, and is a matter for the courts, not for the executive department, to determine.
In respect to the charge of mala fides in procuring the extradition, the department hardly needs to assure the embassy of its emphatic condemnation of any and all such subterfuges as it is alleged were practiced by the bondsmen in this case. Close scrutiny is given by the department to all applications for extradition before their presentation to a foreign government, in order to detect, wherever possible, any abuse of extradition process; but, if such abuse occurs, the remedy in a proper case would appear to be a judicial and not an executive function.
In order to prevent as far as possible a recurrence of abuses of extradition process, the department has prepared and sent to the governors of the various States and to the Attorney-General a circular, copy of which is inclosed herewith.[Page 786]