File No. 10901/58.
[Inclosure.]
Department of State,
Washington, October 23,
1908.
In the matter of the demand for the extradition of
Jan Janoff Pouren.
In this case the decision of the committing magistrate in favor of
extradition was filed in the State Department on the 11th of
September, 1908. Pending the consideration of the record facts were
brought to my attention in the form of affidavits tending to show
that the case comes under the provisions of Article III of the
extradition convention of March 28, 1887, which provides:
“If it be made to appear that extradition is sought with a view to
try or punish the person demanded for an offense of a political
character, surrender shall not take place.”
On the 7th of October these affidavits were transmitted to the
Russian embassy. Attention was called to the fact they tended to
establish, with an inquiry as to whether the demanding Government
desired to controvert the affidavits or to offer any observation
regarding them.
On the 13th of October the record was remitted to the commissioner,
with instructions to reopen the case and give the parties an
opportunity to introduce further testimony upon the matters of fact
exhibited in the affidavits.
The counsel for the Russian Government, has now invoked the action of
the Circuit Court of the United States to prevent the commissioner
from taking the testimony which I have indicated, upon the ground
that the commissioner’s jurisdiction ceased with his original
decision and could not be revived by the remission of the case under
my direction.
This is a purely technical question and can not be permitted to stand
in the way of doing substantial justice in the case. The
responsibility of finally determining whether the man is to be
extradited or not rests with me, and I am clear that I ought not to
direct his extradition without having before me the
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testimony upon the matter indicated in
these affidavits, which I consider to be necessary to enable me to
determine whether the case comes within the provision of the treaty
regarding political affairs. I deemed it proper, however, to give to
the demanding Government an opportunity, if it saw fit, to
cross-examine the witnesses upon the matters to which they have
sworn in the affidavits, and to introduce countervailing testimony.
For this purpose the matter was remitted to the commissioner. As the
demanding Government has not chosen to avail itself of this
opportunity and objects to having any testimony taken in the pending
proceeding and denies the jurisdiction of the commissioner to take
it, and as I do not deem it suitable to discuss with that Government
this purely technical question of internal procedure, I shall
obviate the necessity of further proceedings in the circuit court
and avoid the course to which the demanding Government objects by
dismissing the present proceeding without prejudice to the right of
the demanding Government to initiate a new proceeding in which the
commissioner will have undoubted jurisdiction to take the
evidence.
In accordance with these views, I refuse to issue the warrant of
extradition.
Elihu Root,
Secretary of State.
