File No. 4904.

Memorandum to the Japanese Embassy.

The Japanese embassy has requested, in its memorandum of January 21, 1907, a statement of the practice of the United States in reference to the transit through its territories of criminals and fugitives from justice in course of extradition from one foreign country to another. The memorandum states that in such cases “the territorial sovereign, it is assumed, will, on general principles, have the right to demand that the person under arrest be set at liberty.”

In consequence of the theory of English and American jurisprudence regarding the territoriality of crime, no person can lawfully be arrested or held in custody in this country for a crime committed outside of its jurisdiction, except as provided by statute or by treaty.

The laws of the United States contain no provision authorizing the detention or custody of a fugitive in transit between two foreign countries from which and to which he is being extradited, and the only authority for such detention would, therefore, be a provision of treaty. The only treaty to which the United States is a party which provides for the question of transit is the treaty with Mexico. In other cases, even though the government to which the fugitive is being returned may have a treaty in force with the United States covering the crime for which the fugitive is being surrendered, this Government is bound to surrender such person only upon compliance with the treaty requirements, which are not fulfilled in the ordinary case of transit across its territory. Therefore, the only way a prisoner under such circumstances can, in the full strictness of the law, be conveyed across United States territory is for the demanding government to institute formal extradition proceedings in this country in accordance with treaty requirements.

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The existence of this rule in other countries has sometimes necessitated the making of special arrangements for the return of a fugitive where the vessel conveying him must stop at an intermediate port. In one case the department applied, through the diplomatic channel to the Government of the authorities of such port, for the provisional detention of the fugitive, in case he should attempt to secure his release upon habeas corpus or analogous proceeding. Once in a case of transit across the Isthmus of Panama in 1888, the fugitive was permitted to escape altogether. (For. Rels., 1878, p. 151.)

Many of the States of Europe and South America have enacted laws so as to permit transit through their territory upon more or less liberal conditions. Some provisions stipulate that the request shall be made through the diplomatic channel, and some require the presentation of the documents forming the basis of the demand for the extradition. In England the practice is the same as in the United States. In 1878 the American minister at London was told by the British foreign office, regarding the contemplated transit through British jurisdiction of an American fugitive surrendered by Portugal to the United States, that if he were landed in England he would be “entitled to apply for a habeas corpus, and if the judge decided he was not in lawful custody, he would be set at liberty.”

The question of the amendment of our extradition statutes so as adequately to cover the situation under discussion has twice been made the subject of recommendations to Congress by the President. In his second annual message of December 6, 1886, President Cleveland said:

Experience suggests that our statutes regulating extradition might be advantageously amended by a provision for the transit across our territory, now a convenient thoroughfare of travel from one foreign country to another, of fugitives surrendered by a foreign Government to a third State. Such provisions are not unusual in the legislation of other countries, and tend to prevent the miscarriage of justice.

And President McKinley, in his second annual message of December 5, 1898, renewed the recommendation of his predecessor (Rich. Messages, vol. 10, p. 187), but no legislative action resulted in either case.

The foregoing observations, it will be noted, have been addressed to the strict question of law, as to whether or not the Government has a right to demand that a fugitive, under the circumstances stated, be set at liberty. A distinction is, however, made in practice between the existence of this right and its exercise by the United States. This department, as a mater of practice, does not in these cases interfere to secure liberty for a prisoner by reason of a technical violation of its jurisdiction, but leaves the prisoner to avail himself of the remedy afforded by the laws, without any interference or suggestion upon its part. As an instance of the department’s attitude it may be stated that twice in recent years, when application has been made by the British ambassador, on behalf of Canadian authorities, for leave to take prisoners through United States jurisdiction from one part of Canada to another, the department has stated that it was not disposed to object to such transit, but that it reserved entire freedom of action in the event of an appeal being made to it on behalf of the prisoners, and that, moreover, its failure to object was not to be regarded as a precedent.

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The department’s conclusion upon the question propounded is, therefore, that although the United States reserves at any time a right to object to the transit of fugitives in course of transportation between third States, this is a right which is in practice left to be invoked by the party in appropriate judicial proceedings, and not by this Government in the first instance.