File No. 25010/43.

The Acting Secretary of State to the Italian Chargé.

Sir: I have the honor to acknowledge the receipt of your note of the 28th ultimo, in which you transmit to this department certain papers in the matter of the extradition of Porter Charlton, who, you state, has confessed to the crime of murder committed on the person of his wife at Moltrasio, Como, which crime is specified in Article II, section I, of the extradition convention of March 23, 1868, between the United States and Italy.

I have the honor to return herewith the papers forwarded by you as containing the record of the proceedings conducted by the court of Como in the Charlton murder case. As the department pointed out in its letter to you of July 22 (with which it returned to you a copy of the warrant of arrest issued in this prosecution) this case is now in the hands of the court, and is not before this department; nor will it properly be before the department until the extradition magistrate shall have committed the accused for surrender; and therefore, as the department has already stated, all documents, papers, etc., which the Italian Government may have to offer in the case should be presented directly to the court now having the case in charge.

Concerning your request for the issuance of a “Federal warrant,” I have the honor to call your attention to the department’s telegram of June 24, in which you were informed that under the extradition procedure followed in this country the National Executive issues no Federal warrant in extradition cases until the fugitive is surrendered; and surrender takes place only after the matter has been fully considered by the courts and by the department which reviews the decision of the courts, both branches of the Government having to concur in the surrender. It is not perceived that there is anything from the regular procedure uniformly followed in extradition cases (even were such a course possible, as it is not, under American law), for which procedure the department is pleased to refer you to the following cases in which extradition proceedings have been instituted by the Government of Italy: Liberantonio Merolle (1907); Francisco Surace (1908); Pellegrino Mule (1908); and Settimio Perrotta (1908).

In view of your remark that the department has already issued a “preliminary certificate of arrest” in this case, I am constrained again to direct your attention to the actual situation set forth in the [Page 654] department’s letter to you of June 28 (which inclosed the preliminary mandate requested), in which you were advised that such mandate had no other effect than to indicate that extradition would be requested and that its issuance did not in any way involve a consideration of the legality or the propriety of the extradition—matters to be determined when the extradition record was finally before the department. The department at that time also informed you that the certificate was sent with the distinct undertsanding that it should be without prejudice to the right of this Government hereafter to determine the ultimate action to be taken in this case.

The question of the issuance of the Federal warrant of surrender will be considered when the case is formally and properly before the department for final determination.

Accept, etc.,

Huntington Wilson.

memorandum—extradition of porter charlton.

On June 24, Porter Charlton was arrested on complaint of the Italian vice consul on a charge of murder committed in Italy. Formal demand for the extradition of Charlton under and pursuant to the terms of the extradition treaty between the United States and Italy was made upon this Government by the Government of Italy under date of July 28 (received by the department July 30), that is, within the 40-day period provided for this purpose in the treaty. Later Charlton was taken before an extradition magistrate who, after a formal hearing as provided for by treaty and statute, committed him on October 14 for surrender to the Italian Government.

The committing magistrate’s record as transmitted to the department discloses no material informality in the proceedings, and a case calling for the surrender of the accused under the treaty terms is made out, unless such surrender is to be defeated by objections raised by counsel for the accused. These objections are in their order:

First. That the Secretary of State should decline to surrender the accused and the President should direct his discharge because the record of the committing magistrate as transmitted to the department does not contain the formal demand of the Italian Government for the surrender of the fugitive, or show that such demand was made within the treaty period; and the department may not, in passing upon the matter of surrender, take note of the fact that the demand has been made within the proper time, and that it is in the department’s files forming a part of the department’s record of the case, since the department may not in passing upon the question take into consideration any evidence not before the committing magistrate.

The formal demand or “requisition” of one Government upon another for the surrender of a fugitive is of a political character. It is made pursuant to and in accordance with treaty provisions, through the regular diplomatic channels, for the performance of the obligations imposed by a treaty. This “requisition” is addressed to the political branch of the one Government by the political branch of the other Government and is merely notice that the treaty provisions are to be and are thereby invoked in the matter of the surrender of fugitives. It would appear, therefore, that the making of a “requisition” is a matter which primarily concerns the political branch of the Government, [Page 655] and that all questions regarding the propriety or sufficiency of the form in which it is made are for the determination of that branch.

The statutes of the United States recognize this by conferring upon the committing magistrate jurisdiction to determine whether there are probable grounds to believe that the accused has committed a crime—such grounds as would justify the placing of the accused on trial if the crime had been committed in this country; whether the crime charged constitutes an extraditable offense; and whether the accused is within the purview of the treaty; but they leave the question of sufficiency of the political or diplomatic measures of the proceeding for the determination of the diplomatic branch of the Government.

It is therefore concluded that the first objection raised by counsel for the accused in this case is without merit and of no effect in defeating extradition.

The second objection is that Charlton should not be surrendered because, under the treaty providing that each Government shall surrender persons fugitive from the one and found in the other, Italy refused to surrender to the United States for trial and punishment Italian subjects who were fugitives from the justice of the United States, therefore the United States is relieved from any obligation to surrender its citizens fugitives from Italy; and since the Executive may not surrender fugitives to another Government, except pursuant to some positive treaty obligation or congressional act, and there being no such obligation here existing, there is no authority in the Executive to surrender Charlton and he must therefore be discharged.

This contention, like the first, is without merit in this case.

The fundamental fallacy of this contention is that an extradition treaty must be wholly reciprocal. This is not true. Our own treaties will show, for example, that upon occasion we have stipulated for assistance from foreign Governments in the matter of the apprehension of criminals fugitive from our justice in other countries where we have not been able to grant and do not grant or extend such assistance in a reciprocal case. Great Britain has concluded a number of treaties in which it is expressly stipulated that Great Britain shall surrender its subjects to the other contracting party, although such party refuses to surrender its subjects in reciprocal cases to Great Britain. The report of the British commissioner on extradition made in 1878 recommends that a sound public policy does not require that British subjects should be exempt from extradition where the demanding Government refuses to reciprocate as to its own citizens.

No reason, constitutional or otherwise, is perceived why we should be constrained to take the other view.

The course followed by Italy in the present case indicates, as, indeed, is set forth in the diplomatic correspondence, that the Italian Government regards the United States and Italian treaty as being of this class—that is, nonreciprocal as to citizens or subjects of the respective countries—and that while Italy can not surrender to the United States for trial and punishment her subjects fugitive from the justice of the United States, still the United States is, pursuant to its own interpretation, under obligation to surrender to Italy for trial and punishment citizens of the United States fugitive from the justice of Italy.

The meaning of this treaty with reference to the obligation resting upon the Government of Italy to return to the United States Italian subjects fugitive from the justice of this country has been under discussion for a great many years, the Italian Government at all times [Page 656] during such discussion insisting that since under Italian law it could punish Italians committing crimes in foreign countries and was by that law prohibited from surrendering Italians to such foreign countries for trial and punishment, it rested under no obligation under the treaty to surrender Italian subjects to the United States, and the United States contending that the surrender of citizens was imposed upon both countries by the treaty. After discussing the matter for a number of years the United States has so far acquiesced in the Italian construction as generally to cease to make requisition upon the Italian Government for the return of Italian citizens to this country for trial and punishment, though never formally announcing its acquiescence in the Italian construction, and on the contrary always insisting, when the question has been raised, upon the soundness of its own construction.

The question is now for the first time presented as to whether or not the United States is under obligation under the treaty to surrender to Italy for trial and punishment citizens of the United States fugitive from the justice of Italy, notwithstanding the interpretation placed upon the treaty by Italy with reference to Italian subjects. In this connection it should be observed that the United States, although, as stated above, consistently contending that the Italian interpretation was not the proper one, has not treated the Italian practice as a breach of the treaty obligation necessarily requiring abrogation, has not abrogated the treaty or taken any step looking thereto, and has, on the contrary, constantly regarded the treaty as in full force and effect and has answered the obligations imposed thereby and has invoked the rights therein granted. It should, moreover, be observed that even though the action of the Italian Government be regarded as a breach of the treaty, the treaty is binding until abrogated, and therefore, the treaty not having been abrogated, its provisions are operative against us.

The question would, therefore, appear to reduce itself to one of interpretation of the meaning of the treaty, the Government of the United States being now for the first time called upon to declare whether it regards the treaty as obliging it to surrender its citizens to Italy, notwithstanding Italy has not and insists it can not surrender its citizens to us. It should be observed, in the first place, that we have always insisted not only with reference to the Italian extradition treaty, but with reference to the other extradition treaties similarly phrased that the word “persons” includes citizens. We are therefore committed to that interpretation. The fact that we have for reasons already given ceased generally to make requisition upon the Government of Italy for the surrender of Italian subjects under the treaty would not require of necessity that we should, as a matter of logic or law, regard ourselves as free from the obligation of surrendering our citizens, we laboring under no such legal inhibition regarding surrender as operates against the Government of Italy. Therefore, since extradition treaties need not be reciprocal, even in the matter of the surrendering of citizens, it would seem entirely sound to consider ourselves as bound to surrender our citizens to Italy, even though Italy should not, by reason of the provisions of her municipal law, be able to surrender its citizens to us.

[Page 657]

In determining the meaning which, as a matter of public morals, ought to be given to an extradition treaty, it must be remembered that under our Constitution and laws it is not possible to punish criminals in this country for crimes committed against the peace and dignity of foreign Governments, and that, therefore, unless we surrender to such foreign Governments, for trial and punishment therein, our citizens committing crimes within the jurisdiction of such Governments, such citizens will go wholly unwhipped by justice. Extradition treaties are negotiated and put into force and effect in order that persons committing crimes in one country and fleeing to another may be brought to justice, and to interpret an extradition treaty, which under our Constitution is a supreme law of the land, in a way that does violence to its obvious meaning and our consistent contention as to its meaning, so as to produce the precise situation which the treaty was designed to meet and correct, can not be justified.

For these reasons it is decided that the Government of the United States should surrender to the Government of Italy Porter Charlton, charged with the crime of murder, which crime he has confessed.

Counsel for the prisoner also contends that Charlton should not now be surrendered because the committing magistrate refused to receive testimony tending to prove his insanity. If the magistrate erred in thus refusing such testimony the prisoner has his remedy in the courts and it is not for the department, at this state of the proceedings, to pass upon this question.

P. C. Knox.