The British Ambassador to the Secretary of State.
Washington, June 22, 1906.
Sir: I have the honor to acknowledge the receipt of your memorandum of the 4th of June, regarding the case of Arthur McIntire, who has been imprisoned in the United States for a nonextraditable offense, after he had been brought back to this country on a charge of embezzlement.
I note that in order to prevent as far as possible a recurrence of abuses of extradition process the Department of State has sent to the governors of the various States and to the Attorney-General a circular regarding future applications for extradition addressed to the Secretary of State.
I have to thank you for sending me a copy of this circular. It will be transmitted to His Majesty’s Government, who have asked for a report.
With regard to the particular case in point, I wish, in the first place, to correct a misapprehension which appears to have arisen in this embassy regarding the facts. It does not seem to be the case that the prisoner, although surrendered for one offense, was tried for another.
Apparently he was surrendered on a charge of embezzlement, which was an extraditable offense, and then agreed to undergo a term of imprisonment to which he had previously been sentenced for using the United States mails with intent to defraud, which was not an extraditable offense, the charge of embezzlement being dropped or dismissed.
I inclose a copy of the prisoner’s statement, omitting irrelevant portions. It supports the natural surmise that the prisoner’s agreement to undergo a term of imprisonment was voluntary only in a limited sense.
With regard to your suggestion that the appropriate remedy would be for the prisoner to apply for a writ of habeas corpus whereby his rights could be judicially determined, I would observe that, as I understand it, the prisoner was not sent to jail by order of the court before which he appeared to answer the charge of embezzlement, nor directly by order of any court, but by order of the United States [Page 787]district attorney, who, unless I am mistaken, is a federal official under the orders of the Federal Government.
It is no doubt possible that the prisoner could, if he cared to undergo the delay and expense of judicial proceedings, get some remedy against the court which held him, apparently without legal right to do so, and handed him over to the district attorney, but this would not serve his immediate purpose, which I take to be release from jail, and it would not meet the whole difficulty.
The principle that if any abuse of extradition process occurs the remedy would appear to be a judicial and not an executive function is, I think, open to argument. But in the absence of instructions from His Majesty’s Government, I do not think I can serve any useful purpose by discussing at length this aspect of the question.
I have, etc.,