File No. 10901/58.

The Secretary of State to the Russian Chargé.

No. 101.]

Sir: I have the honor to inclose herewith for the information of your Government a copy of a decision which I have this day rendered in the matter of the demand for the extradition to Russia of Jan Janoff Pouren, by which, for reasons therein stated, the issue of the warrant of surrender is refused and the present proceeding dismissed without prejudice to the right of the demanding Government to initiate a new proceeding.

Accept, etc.,

Elihu Root.


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 [Page 518] 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.