File No. 23700/29.
Immediately upon receipt of this generous note I telegraphed my thanks
and at once advised the department by cable. At the same time I wrote
acknowledging the note in one, of which I inclose a copy, and advised
the minister that I had referred the matter to my Government. On the
receipt of the department’s telegraphic instruction [Page 89] I prepared and sent a note, of which I
inclose copy, embodying the points contained in the department’s cable
and discussing the entire matter of the meaning of Article II, section
6, of the treaty of extradition, as it applies to the crime of burglary.
At the same time I have directed the secretary of the legation to submit
to me, for transmission to the department, a précis of the law and
procedure of the Grand Duchy in matters of extradition. This will be
forwarded to the department for its information at an early date.
[Inclosure.—Translation.]
Baron
Frauenberg to Minister Beaupré.
Foreign Office,
The
Hague, May 6,
1910.
No. 21.]
Mr. Minister: According to the existing
laws of the Grand Duchy of Luxemburg the Government can grant the
extradition of a fugitive sought by a foreign country only in the
case where an international treaty guarantees reciprocity for the
particular crime which has given rise to the request for
extradition. Nicholas Knepper, whose delivery the judicial
authorities of Chicago request, according to your excellency’s
honored note of April, 1910, is accused chiefly of an offense
(burglary) committed by means of false keys—an offense which is not
foreseen by the treaty of extradition between the Grand Duchy of
Luxemburg and the United States of October 29, 1883 (Art. II).
Basing its decision on this circumstance the court of arraignment
has delivered the opinion that the extradition of Knepper can not be
granted. Therefore, according to Article II, section 5 of the law of
March 13, 1870, on extradition, the Government is bound by the on
extradition, the Government is bound by the decision of the court of
arraignment in such a way that, in the case in question, it can not
grant the request of the legation.
Before deciding finally, however, I have the honor to beg your
excellency to be good enough to let me know if, under the
circumstances, the legation wish to persist in its request or would
not rather prefer to withdraw it.
If the plaintiff authorities intend to persist in their request the
court of arraignment might perhaps be inclined to make a favorable
decision if, by simple declaration, the Government of the United
States will guarantee to the Government of the Grand Duchy that it
will grant, in such cases, requests for extradition which may
emanate from the latter for analogous offenses.
While awaiting the reply of your excellency, Nicholas Knepper will be
held under arrest, if the Luxemburg authorities be enabled to
continue the case before the 17th instant.
Accept, etc.,
[Inclosure 2.]
Minister Beaupré to the Minister of
State.
American Legation,
The
Hague, May 10,
1910.
No. 61.]
Sir: I have the honor to refer to your
excellency’s courteous note of the 6th instant in regard to the
opinion of the chamber of arraignment of the superior court of the
Grand Duchy, that the extradition of Nicholas Knepper must be
refused, on the ground that the offense with which he is charged, in
the State, of Illinois, United States of America, does not fall
within the treaty definition of the crime of burglary, and to my
reply of the following day advising your excellency that I had
communicated your excellency’s suggestions in the promises to my
Government, and now to inform your excellency that I am in receipt
of telegraphic instructions from my Government setting forth the
position of the United States of America in the question raised by
the opinion of the chamber of arraignment of the superior court of
the Grand Duchy which, in accordance with Article II of the law of
1870, had been called upon to give its opinion (avis).
I beg your excellency to understand that it is not my intention, as
it is not my province, to enter upon a discussion of the findings of
the chamber of arraignment of the [Page 90] superior court of the Grand Duchy; yet, in
order to make clear the position of my Government, I venture to
direct your excellency’s attention to Article II, section 6 of the
treaty of extradition, of October 29, 1883, between the United
States of America and the Grand Duchy of Luxemburg, which provides
for the extradition of persons who have been duly charged with the
“crime de ‘burglary’ consistent dans l’action de s’introduire
nuitamment et avec effraction ou escalade dans l’habitation d’autrui
avec intention criminelle,” etc. It has doubtless been observed by
your excellency that in the French text of the treaty, quoted above,
the term “burglary” is employed in English, it being manifestly the
intention of the treaty, by its employment of that word, in both
texts, to define, in what follows in each text, an offense which
shall be considered one and the same. Now in the English text the
term “burglary” is qualified as “the act of breaking and entering,”
etc., the words “breaking and entering,” usually employed, in the
courts of the United States, in association with the term
“burglary,” being accepted generally in American law to include the
opening of a door or a window, even though the door or window be not
locked or latched (ferme au loquet). Under this the accepted
interpretation of the term “burglary,” the crime with which the
fugitive Knepper is charged, clearly falls within the definition.
Moreover, this crime, known in the United States as “burglary,” is
indubitably the same, and, I take it, it is the patent intention of
the treaty that it should be the same, as that which is defined in
the first chapter of Book IX of the Penal Code of the Grand Duchy,
section 467 of which reads:
“Le vol sera puni de reclusion:
“S’il a été commis à l’aide d’effraction, d’escalade ou de fausses
clefs,” etc., when such theft shall have taken place at night, as
expressly provided in the treaty.
It appears, then, that the crime known in American law as “burglary,”
and so entitled in both texts of the treaty so as to avoid doubt as
to what is intended, is, in the law of the Grand Duchy, divided into
three aspects—l’effraction, l’escalade, and l’empevi de fausses
clefs—which three aspects are in American law covered, and fully
covered, by the words “breaking and entering.” It appears to me, and
I submit it to the judgment of your excellency, that the use of the
term “burglary” in both texts of the treaty is an indication of. the
intention of your excellency, at the time of signing that
instrument, to cover a crime known in American law as “burglary,”
and that the words which follow are to be regarded rather as
illuminating than as qualifying the term “burglary,” which specifies
the crime for which extradition is to be granted.
In regard to the courteous suggestions made by your excellency in the
second paragraph to which I have referred, that if by simple
declaration the Government of the United States will guarantee to
the Government of the Grand Duchy that it will grant in such case
requests for extradition emanating from the latter Government for
analogous offenses, the chamber of arraignment of the superior court
of the Grand Duchy might be inclined to make favorable decision, I
must inform your excellency that in my country the procedure differs
from that in the Grand Duchy in that, while in your excellency’s
country, as is pointed out by Dr. Ulveling, “le purvoir judiciaire *
* * n’a qu’un rôle purement consultif,” in the United States it is
the judicial authorities who have the final decision in matters of
extradition, the Department of State acting only after that decision
has been pronounced. Inasmuch, therefore, as the initial commitment,
in cases of extradition from the United States, upon which the
Department of State of my Government finally acts, is made or
refused by judicial authorities, over whom the Department of State
of my Government can exercise no control, the Department of State
can not guarantee the surrender of a fugitive charged with a crime
similar to that with which the fugitive Knepper was accused.
I have, however, endeavored to make clear to your excellency, I fear
at some length, the attitude of American law toward the crime with
which the fugitive Knepper is charged. In view, therefore, of the
fact that to refuse to regard as burglary, and therefore
extraditable under the treaty, an offense such as that with which
the fugitive Knepper is charged, would require the overturning of
legal principles, well established and unquestioned in the United
States, I am directed by my Government to say that it feels certain
that it would be able to surrender to your excellency’s Government a
fugitive similarly charged.
I have, then, the honor to beg your excellency to be good enough to
bring these matters to the attention of the chamber of arraignment
of the superior court of the Grand Duchy, in the hope that, when
they have been considered, a more favorable conclusion may be
reached, and that, as my Government trusts, your excellency’s
Government will find it possible to surrender the fugitive whose
extradition I have had the honor to request.
I avail, etc.,
