File No. 3294/27.
The Acting Secretary of State to Consul-General Skinner .
Washington , April 27, 1907 .
Sir: I have to acknowledge your No. 322, dated the 4th instant, and in reply have to state that the department has noted and given due attention to your observations regarding the practice of France, which allows the extradition of fugitives from the justice of foreign countries on the principle of reciprocity, in the absence of treaty stipulations, and especially to your statement that if the principle as applied in the Jacobs case be admitted, it “practically renders unnecessary every existing extradition treaty, and squarely opposes the consistent attitude of the American Government, which has always maintained the doctrine that only by treaty can the surrender of accused persons take place.”
The situation which the present case presents makes it necessary to keep in mind an important distinction which must be observed between the systems of extradition which exist in such countries as France, whose legal system is founded upon the civil law, and the United States, whose legal system is founded upon the principles of the common law. In this country no man can be rightfully deprived of his liberty except for violation of some law of the United States or of the several States or by virtue of the provisions of some treaty of extradition, authorizing his detention. In the absence of a treaty, a person who has committed a crime against the laws of a foreign State, and flees to this country, is not liable to arrest in this [Page 427] country. The only legal justification for depriving him of his liberty arises from and is based upon our treaty engagements with these foreign countries, by which we bind ourselves to apprehend the man and, after compliance with certain legal formalities, to return him for trial to the jurisdiction where the crime was committed. If the fugitive is arrested in the absence of such a treaty, he is arrested without authority of law, and is entitled to his release upon habeas corpus.
This doctrine was finally set at rest by the decision of the Supreme Court of the United States in the case of United States v. Rauscher (119 U. S., 407), in which the court held that in the absence of a treaty provision no power existed in the United States to surrender a fugitive who had committed a crime against the laws of a foreign government, and moreover, that even in case of the existence of such a treaty, the obligation to surrender was limited to the offenses expressly provided by the treaty for which such surrenders should take place.
This is the law of the United States, but the laws of France are very different. From such an examination of them as the department has been able to make, an examination which is confirmed by the communications of the French foreign office to our embassy, it appears that the practice of surrendering a fugitive from justice is observed in all cases in which the demanding government will give an adequate assurance that in case a similar occasion arises the demanding government will surrender to France a fugitive from French justice who has committed a like crime. This Government can not question the policy of such a practice or of such laws, but must regard them as existing facts.
So far as France is concerned, therefore, treaties of extradition may not be necessary, the only requisite for such surrender being an assurance of reciprocity. A difficulty, however, obviously presents itself in carrying out the reciprocity theory, when a case arises calling for extradition between France and a country whose legal system does not permit the apprehension of a fugitive, where a crime is committed outside the territorial jurisdiction, except in pursuance of treaty. Suppose there were no extradition treaty in force between the United States and France, and this country should ask for the extradition of a fugitive who had committed some crime in the United States and fled to France, the French Government would grant the same if the United States would promise that this Government would surrender a fugitive from French justice charged with the same crime, should the case arise. This promise the United States would be compelled to refuse to make, following the decision in United States v. Rauscher, since no extradition treaty authorized the surrender. France, therefore, would refuse, to honor the department’s request, because this Government could not promise reciprocity. In order to obtain, therefore, the mutual surrender of fugitives between France and the United States it is necessary to negotiate a treaty by which each government agrees to deliver up fugitives from justice charged with certain crimes. In other words, the enactment of a treaty is the method adopted by this Government to meet the requirement of France, and to create on the part of the United States the necessary obligation to surrender. As it has been definitely decided by the Supreme Court in the case of Rauscher, to [Page 428] which reference has already been made, surrenders may only be made for offenses mentioned in our treaty; therefore France will make surrenders to this country only for treaty offenses, and it may well be that an American citizen may be surrendered by France to a third country for an offense not included in the treaty of extradition between the United States and France if the reciprocity principle prevails in the third country, and that country will make similar surrenders to France, the circumstances being reversed.
These conditions arise in the present case. Mr. Jacobs can not be extradited from France to the United States for fraudulent bankruptcy, because this offense is not enumerated in our treaty, but the department is satisfied that the inability to extradite the prisoner to the United States will not preclude his extradition to the Argentine Republic, where there appears to be no such restriction upon surrenders as there is under the laws of the United States.
In regard to the statement that Mr. Jacobs still continues in custody and has not yet been delivered to the Argentine authorities, the department is not advised as to the duration of the period after commitment for surrender within which the authorities of the demanding government have the right to remove the fugitive from the jurisdiction of the French Government. It would seem that this period would be easy of ascertainment by an appropriate inquiry of the French authorities. It is to be added, however, that under the extradition statutes of the United States a demanding government is allowed a period of sixty days after commitment for surrender to remove the fugitive before he is entitled to apply to a court for release upon habeas corpus.
It would not seem, therefore, that the department could justly protest against a like period of detention after commitment for surrender unless a shorter term is prescribed by the French law.
I am, etc.,