File No. 25010/43.
The Acting Secretary of State to the Italian Chargé.
Washington, August 5, 1910.
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.