File No. 21794/3.
The Acting Secretary of State to Chargé Schuyler.
Washington, October 25, 1909.
Sir: The department has received your No. 550, of the 17th ultimo, forwarding copies of notes exchanged between the embassy and the Russian foreign office in regard to the legalization of the papers in the case of one Izka Saksonoff, whose extradition is sought by the Russian Government on the charge of complicity in a forgery.
It would seem that in taking up formally with the foreign office the questions discussed in your note to it, you somewhat exceeded the powers which by statute have been conferred upon diplomatic and consular officers in matters of extradition from the United States, as those powers have been defined by our Federal statutes. (Rev. Stat., 5271, and sees. 5 and 6 of the act of Aug. 3, 1882. See Consular Regulations, pp. 512–513, and sees. 423 et seq.; see also Moore on Extradition, vol. 1, sec. 309 et seq.; Moore’s International Law Digest, vol. 4, sec. 611.)
These statutes provide for the admission in extradition matters of depositions, warrants, and other papers or copies thereof, where such depositions, warrants, and other papers or copies are properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped “and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any deposition, warrant, or other paper, or copies thereof, so offered, are authenticated in the manner required by this act.”
It will be observed that this statute confers upon diplomatic and consular officers no power or discretion whatsoever except as to the mere authentication of the documents, and it is the uniform practice to consider that the question as to whether or not a crime specified in the papers and documents submitted by the foreign government comes within the meaning and purview of the treaty is a judicial question for the determination of our Federal courts or of this department; therefore, while in glaring cases it might not be improper for a diplomatic or a consular officer to suggest, unofficially and informally, that the crime specified in the papers appeared not to come within the purview of the treaty, such a statement should be made only in the clearest cases and then with the greatest care and circumspection.
You will understand in this connection that the naming of the crime in the certificate of authentication would appear to serve no other purpose than to identify the papers authenticated, and that it has no determinative or even persuasive effect upon the question as to whether or not the crime specified by the papers falls or does not fall within the terms of the treaty.
[Page 526]Concerning the crime charged in this case and the general question of extradition under the Russian treaty for complicity or participation in a crime, the department is unable to understand how it is possible to have overlooked the initial provision of Article II of the extradition convention of 1877 with Russia, in which it is specifically provided that “persons convicted of or charged with any of the following crimes, as well as attempts to commit or participation in, the same, as an accessory before the fact, provided such attempt or participation is punishable by the laws of both countries, shall be delivered up in virtue of the provisions of this convention.” While there may be a question as to whether or not under this provision it would be possible to extradite fugitives for participation in the crimes enumerated, except as accessories before the fact, there would seem to be no reasonable doubt that participants as accessories before the fact could be extradited. But here again the question as to what the treaty really means and whether or not a particular crime charged falls within that meaning, is a question for the determination of the courts and of this department, and not for the embassy.
In this particular case the department has examined the papers submitted by the Russian Government and concluded there was reasonable ground to believe that the crime charged in the papers falls within the purview of the treaty. It therefore issued the preliminary certificate for the apprehension of the fugitive, in order that the matter might be thoroughly considered and determined by the courts.
I am, etc.,