File No. 14040/22–23.

Minister Eddy to the Secretary of State.

No. 38.]

Sir: Referring to the department’s telegram of the 19th instant in regard to the extradition of Vito Damiano, I have the honor to report that upon receipt of this cable I immediately sent a note to the Argentine minister for foreign affairs stating that I had been notified by my Government that neither the Federal authorities nor those of the State of New York were authorized to guarantee that Damiano, if extradited, would not suffer the death penalty if convicted of the crime of murder in the first degree.

I further pointed out that my Government did not consider the proposed condition warranted by the extradition treaty between the two countries and cited article 648 of the Argentine Penal Code, which provides that extradition should be granted according to treaty and not according to local law.

The next day, in conversation with the minister for foreign affairs, I again brought the matter up and stated that in various previous cases in which this legation had demanded the extradition of criminals no such condition had ever been mentioned, and that if the Argentine Government insisted upon such an interpretation the extradition treaty between the two countries would become quite worthless as far as the United States was concerned, as that Government could hardly give the assurance demanded by the Argentine Government that “when a crime on which the demand for extradition is founded has a lesser penalty in the Republic extradition of the accused is only agreed to under the condition that the courts of the claiming power will apply to him the lesser penalty.” Article 667, Código de Procedimientos en lo Criminal.

The minister appeared to appreciate the position taken by the department, and promised to submit the matter to the attorney general without delay.

I am now in receipt of a note from the ministry for foreign affairs, dated October 27, a copy of which, together with translation of same is inclosed herewith, stating that in accordance with the opinion of the attorney general the case has been referred back to the court which gave the sentence for measures to be taken to provide for the suppression of the clause objected to by the department.

I shall do everything in my power to obtain the decision of the Argentine Government with as little further delay as possible, and shall notify the department promptly of the result.

I have, etc.,

Spencer Eddy.

The Minister for Foreign Affairs to Minister Eddy.

Mr. Minister: I have the honor to acknowledge the receipt of your excellency’s note of the 20th instant, in which, in accordance with telegraphic instructions from your Government, you observe that the clause, by which the [Page 19] extradition of Vito Damiano has been granted by the federal judge of the capital, Dr. Rodriguez Larreta “on condition that the authorities of the country making the request, apply to the person whose extradition is demanded, in case of condemnation, the punishment immediately inferior to that of death, if this should be imposed”—a condition which your excellency says is not in accordance with the stipulations of the treaty existing between both countries.

In reply I beg to inform your excellency that in accordance with the opinion of the procurador general of the nation (attorney general), your excellency’s note, together with the other documents, have been sent to the procurador fiscal (prosecuting attorney) in order that he may again take the proper steps toward obtaining the suppression of the said clause in the sentence referred to.

As soon as I shall have been informed of the definite decision of the judge, Dr. Rodriguez Larreta, I shall make haste to communicate the same to your excellency.

Meanwhile I take pleasure in renewing, etc.,

V. De La Plaza.