The British Ambassador to the Secretary of State.

No. 114.]

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.,

H. M. Durand.

Mr. McIntire to the British vice-consul.

Dear Sir: Replying to your esteemed inquiry of the 7th instant.

On May 21, 1904, I was convicted in the United States district court at St. Louis, Mo., of a violation of the law known as “devising a scheme to defraud,” a high misdemeanor and nonextraditable, and was sentenced to serve eighteen months in the penitentiary at Jefferson City, Mo. Will pass over the merits of the case except to say that I was not guilty.

I gave notice of appeal and was released on bond twenty-one days after my conviction. Was given sixty days in which to perfect the appeal. However, the first trial had exhausted my resources, and I was not able to raise money with which to have necessary transcripts, etc., prepared. I begged my bondsman to let me have the paltry $300 which it required. The reason he should have given it to me and seen me entirely out of my trouble was that he had made all the money that was made (about $40,000) out of the alleged scheme. He refused, however, and so I was unable to perfect the appeal in the required sixty days. At the end of that time the Government did not call on me for satisfaction of judgment, as I expected. The matter dragged along for about six months and I was told that if I would perfect the appeal even then it would be in time. The scheme was suggested to me that if I should apparently jump my bond by leaving the city for parts unknown that my bondsman, in order to protect himself from the loss of a larger sum, would advance the amount needed to perfect the appeal to my attorneys. This looked to me like the straw to a drowning man and I grabbed it and went, leaving a note to my bondsman that I had secured a permanent employment in another city and would he be so kind as to advance the amount as a loan to me and get the case into the appellate court, and that he would hear from me shortly. Instead of having the desired effect on him it worked contrariwise. He flew into a passion and went to the home of my mother and told her that he would spend $50,000 to get me back. This, of course, was communicated to me, my fighting blood was aroused at the injustice of it, and I promised myself to give him the chance, at least, to spend as much as I could possibly make him. With this end in view I traveled the country for about four months as musical director of a theatrical company, and then sailed for London, as I knew the offense was a nonextraditable one.

I arrived in London on February 14, 1905. In the meantime the bondsman had offered a reward of $500 for my capture, sending circulars broadcast and giving the Pinkertons carte blanche, of which, by the way, they took full advantage. On April 8, 1905, I was arrested, in London by Scotland Yard and Pinkerton men and brought before the Bow Street police court to be remanded for extradition, on information from St. Louis that I was wanted for the crime of embezzlement. I explained to the court that this was a mystery to me, as such a thing as embezzlement had never been thought of in connection with me [Page 788] or my affairs. Nevertheless, I was sent to Brixton Prison and kept there for three weeks, until the papers arrived, together with the St. Louis detective to take me back.

The papers showed that my bondsman, together with, two of his friends, had deliberately and falsely alleged and sworn to the fact that I had embezzled the sum of $90 from him. That this was an utter impossibility was easily shown from the fact that I had never been in a position to embezzle any of his funds, the opposite being the case, as I never had any of his money, while he handled large sums of mine, and on several occasions, to put it charitably, in a very suspicious manner. I explained this to the court and said that this charge was simply a subterfuge to get me back to the United States so that I could be delivered up in satisfaction of judgment in another matter that was nonextraditable. The judge, however, with the greatest kindness and consideration possible, pointed out to me the fact that he had the sworn testimony of three reputable citizens of my community as against my unsupported word, offering to give me all the time that I required to procure evidence in rebuttal. This, of course, was impossible for several reasons, the first one being sufficient—that I was barely making a living and had no money with which to employ legal talent at both ends of the line. The judge told me that he was sure that if I was innocent of the embezzlement charge that I would not be prosecuted or punished on any other, as it was an international matter and niceties of honor would be observed. So there was nothing more to do, and after being kept in Brixton Prison for fifteen days more, as required by their law, I was brought back to St. Louis.

I arrived in St. Louis on May 27, 1905, Saturday afternoon, at about 2 p.m. Was kept in the hold over until Monday, the 29th, which, I believe, was Labor Day and a holiday, and no one but friends came to see me. On Tuesday, the 30th, the attorney for my bondsman called and offered to dismiss the embezzlement case if I would allow myself to be given up to the federal court for the other affair. By this time I was penniless, sick, and altogether discouraged, swarming with body lice from the jail, and knowing that if I attempted a fight the matter could be dragged along indefinitely, with no relief for me, so I agreed to his proposition. Court was not in session that day, but the next, May 31, I was taken before Judge Moore and pleaded not guilty to the indictment for embezzlement. I was then taken into Mr. Sagar’s office, still in custody, and he, at the suggestion of my bondsman’s attorney, entered a general continuance in the case, and assured me that so far as he or his office was concerned I would never again be troubled with it.

Although, as matters then stood, the charge for which I had been extradited had been dismissed, I was taken, still then in custody of the detective who brought me back, to the office of Colonel Dyer, United States district attorney. He was very frank, told me that under the circumstances he had no right to send me to the penitentiary unless I was willing to go, and asked for an expression from me. I told him that I was willing; that I was tired of fighting against fate, and cared very little what became of me. Was next taken to the office of the United States marshal. Was there handcuffed, and took the 2 p.m. train for Jefferson City, where I arrived at 5 p.m. Was transferred to this penitentiary on November 24, 1905, together with all the other federal prisoners at Jefferson City.

I am, etc.,

Arthur F. McIntire.