The Acting Secretary of State to the Mexican Chargé .

No. 78.]

Sir: I have the honor to acknowledge the receipt of your note No. 159, of the 11th instant, requesting the return to Mexican territory of Antonio Martinez, alias Juan Puebla, who, it is alleged, was improperly brought into the United States in order to stand trial for an offense against the laws of California.

You state that the person who perpetrated the alleged kidnaping, Antonio Felix, has been surrendered by this Government to Mexico, in order to stand trial for such offense, and that your Government considers it self-evident that the action pending against Martinez, alias Puebla, “can not rest upon any legal foundation, since the [Page 1122] United States itself has implicitly recognized that the means used to bring him into American territory was unlawful.” You, therefore, request that Martinez, alias Puebla, be returned to Mexican territory, whence he was illegally taken.

The exact question presented in this case appears to have arisen in a case which came before the Supreme Court of the United States in 1886 (Illinois v. Ker, 119 U. S., 436). In that case the defendant, Ker, had committed the crime of larceny against the State of Illinois and had fled to Peru, whence he was abducted by a United States officer, taken back to Illinois for trial, and convicted in due course in the courts of that State At the trial it was urged in the defense: (1) That he was improperly brought within the jurisdiction of Illinois, and (2) that he had acquired a right of asylum in Peru.

The case was finally brought by a writ of error before the Supreme Court of the United States, and both of the objections raised by the prisoner at his trial in the courts of Illinois were carefully reviewed.

Regarding the first objection (which appears to be the same as that relied upon in your present note), the court held that the irregularity in the manner of bringing the defendant within the jurisdiction was not a defense which could be pleaded as a valid bar to trial for a crime upon a regular indictment, and that when the fugitive was “found within the jurisdiction of the State of Illinois and liable to answer for a crime against the laws of that State unless there was some positive provision of the Constitution or of the laws of this country violated in bringing him into court, it is not easy to see how he can say that he was there ‘without due process of law,’ within the meaning of the constitutional provision.”

Regarding the second objection urged by the defendant, the court held that the treaties of extradition between the United States and foreign powers do not guarantee to a fugitive from the justice of one of those countries an asylum in the other, nor do they give any greater or more sacred right of asylum to such person than he had before.

The decision of the court in this case has been approved in Mahon v. Justice (127 U. S., 712) and In Re Johnson (167 U. S., 126).

It is not seen wherein the case of Martinez differs from that of Ker. In the latter the court remarked that their view of the subject left neither the prisoner nor the Government whose jurisdiction had been invaded without a remedy, and that the Government of Peru had the right to demand from this Government the surrender of the kidnaper for trial in its courts for violation of its laws. In the present case the Government of Mexico has made a demand upon this Government for the return of Felix in order to stand trial for kidnaping, and this department has complied with such demand by surrendering the alleged offender.

It is, however, unable to comply with the request of the Mexican Government for the release of Martinez for the reasons above set forth, as well as for the further reason that the prosecution of Martinez appears to be proceeding in the courts of the State of California, which are independent of the Federal Executive.

Accept, etc.,

Robert Bacon.