File No. 12208/1.
The department will, accordingly, conform to the opinion of the Attorney
General, as expressed in his letter, in all future extradition
cases.
[Inclosure.]
The Attorney General
to the Secretary of State.
Department of Justice,
Washington
,
July 10,
1908
.
Sir: Your note of April 17 transmits a note
from the Mexican Embassy of the 3d ultimo, requesting a ruling by
this Government upon the meaning of that part of Article X of the
extradition treaty of 1899 which specifies the period during which
fugitives shall be detained pending the production of the documents
necessary for the hearing and determination of a demand for
extradition; and you request my opinion on this question because of
its importance and because of the desirability of uniformity of
interpretation on the part of both Governments.
Article X of the treaty of extradition with Mexico of February 22,
1899 (31 Stat, 1818, 1825), provides:
“On being informed by telegraph or otherwise, through the diplomatic
channel, that a warrant has been issued by competent authority for
the arrest of a [Page 596] fugitive
criminal charged with any of the crimes enumerated in the foregoing
articles of this treaty, and on being assured from the same source
that a requisition for the surrender of such criminal is about to be
made, accompanied by such warrant and duly authenticated
depositions, or copies thereof, in support of the charge, each
Government shall endeavor to procure the provisional arrest of such
criminal and to keep him in safe custody for such time as may be
practicable, not exceeding forty days, to await the production of
the documents upon which the claim for extradition is founded.”
Under this article the time elapsing between provisional arrest and
final surrender to the demanding Government is to be divided into
three parts, the period between arrest and production of documents
that between production of documents and committal for surrender,
and that between committal and actual surrender to the officials or
agents of the demanding Government. The precise question raised by
the Mexican note relates to the first period, and is whether the
treaty requirements as to the 40 days detention are met by
production of the necessary extradition documents to the respective
state departments of the two Governments within the 40 days
specified.
It appears that the accustomed course, in general, under our
extradition treaties with foreign nations is for the foreign
government to submit its papers through its proper officer directly
to the extradition magistrate, and then, if the fugitive is
committed for surrender, the papers are forwarded by the magistrate
to the State Department for examination and approval. Ordinarily,
then, this is the first point at which the State Department bears an
official relation to the documents and evidence upon which the
extradition of the alleged fugitive is sought. In the case of
Mexico, however, the procedure and practice actually followed has
been different, and it has been the uniform practice for the Mexican
diplomatic authorities to submit their papers first to the State
Department, and the papers are then returned to the Mexican Embassy
without formal action at that stage, with the suggestion that the
embassy forward them at once to the extradition magistrate; and on
its part the Mexican Government has always held that the production
of our papers within 40 days to its foreign office satisfies the
provisions of the treaty. The question is practically important
because, in view of the long distances and limited facilities for
communication with Mexico, it would often be difficult or even
impossible to transmit the papers through the diplomatic channels to
the respective State Departments and thence to the extradition
magistrate in some outlying district all within 40 days. It must
then be considered whether the language of the treaty justifies the
view that the production of papers contemplated by the treaty is
production to the respective foreign offices, for if so production
to the State Department of this Government in the case of a demand
for extradition by the Government of Mexico within 40 days is
sufficient.
It will be noted that Article X provides that the information
regarding the issuance of a warrant by competent authority shall be
conveyed “through the diplomatic channel,” and that the Government
thus addressed “on being assured from the same source that a
requisition for the surrender of such criminal is about to be made *
* * shall endeavor to procure the provisional arrest of such
criminal,” etc. This language seems to contemplate that the whole
course of proceeding up to the production of the documents is
between the two Governments, and the reference to “the diplomatic
channel” points to the foreign offices of the two Governments. I
understand the Mexican Government has always held that production of
our papers within 40 days to its foreign office satisfies the
provisions of the treaty, and its present practice is in accordance
with this view, and, as above stated, the existing conditions in
Mexico make it difficult, if not impossible, to transmit the papers
through the diplomatic channel to the Mexican extradition magistrate
in an outlying district within 40 days. The purpose of this treaty
is the highly salutary one of securing the arrest and punishment of
lawbreakers and dangerous members of the community. It should be so
construed, in my opinion, as to give effect to this purpose.
Moreover, it must be supposed that the two Governments acted and
agreed together with the peculiar conditions existing in Mexico
present to the minds of both. If one construction assures a
reasonable opportunity for each Government to furnish the other
proofs necessary to justify the continued detention of suspected
criminals, while another construction facilitates the escape of
fugitives from justice and tends to impede the punishment of crime,
the former should certainly be preferred in the absence of
compelling words to the contrary.
In find no such words here. The prisoner is to be detained “not
exceeding 40 days” for a specified purpose, namely, “to await the
production of the [Page 597]
documents upon which the claim for extradition is founded.” To whom
must these “documents” be “produced”? The treaty does not say
“production to the prisoner” nor “production to the committing
magistrate,” and I see no sufficient reason why either set of words
should be read into it. When the “documents” are submitted to the
foreign office of the Government detaining the suspected criminal,
there is certainly a “production” of them which satisfies the words
of the treaty, and I think this also satisfies the intent and guards
against the mischief which it is reasonable to suppose was
apprehended by the two Governments. The Government receiving these
documents can then see whether the charge against the prisoner it
holds is serious and apparently sustained by evidence, and with this
knowledge it can determine whether it will or will not prolong his
detention. Doubtless the result of this interpretation is that the
person under arrest may be detained for more than 40 days mentioned
in the article, but the object of this limitation was, in my
opinion, to compel reasonable diligence on the part of the
Government seeking the extradition, and not to enable the person in
custody to escape before the Government in question, however
diligent, could furnish proofs of his probable guilt.
In view of the foregoing considerations, I have the honor to advise
you that, in my opinion, the 40 days during which the prisoner may
be detained under the terms of this treaty “to await the production
of the documents upon which the claim for extradition is founded
“must be considered as meaning 40 days prior to the production of
the documents to the State Department in the United States or the
corresponding branch of the Mexican Government, and if the said
documents are thus produced within 40 days, the suspected criminal
has no absolute right of release under the terms of the treaty, but
may be detained for a reasonable additional period to afford time
for an investigation into his probable guilt or innocence.
I remain, etc.,
