The Secretary of State to the Mexican Ambassador.
Washington, April 13, 1910.
Excellency: I have the honor to acknowledge the receipt of your note, No. 522 bis, of the 2d ultimo, in which you suggest an exchange of notes between your Government and that of the United States with a view to establishing by such exchange that, in accordance with the practice which you state already obtains, the authentication by consuls residing in the country by which extradition is demanded is sufficient to have the papers upon which the demand is based considered as duly authenticated.
[Page 732]The department regrets to say that it deems it inadvisable to exchange notes in the sense proposed in your note, since even if the department did exchange notes setting forth an understanding as suggested by you, such notes would not, so far as the internal affairs of this Government are concerned, have the status either of a treaty or of a law, but would be merely an executive interpretation of the treaty and of the Federal statutes. This would not be-binding upon the courts of this country, which might at any time disregard the agreement incorporated in the notes, in which case it would not be possible for the department to control their decision. This is particularly true, since it is not entirely clear to the department that the contention which you make regarding the meaning of Article VIII of the treaty is the only one which may properly he placed upon it. In this connection you will observe that the first paragraph of Article VIII stipulates that consular officers may act “in the event of the absence of these [that is, the respective diplomatic agents of the contracting parties] from the country or from its seat of government,” and it might well be contended that this stipulation of the first paragraph shall be carried over into the second paragraph of the article, which speaks of an authentication by the “minister or consul of the respective contracting party.” At any rate the point seems so doubtful that a decision, either one way or the other, by the courts of either country could scarcely be regarded as improper. Therefore it would appear that such regulations as you suggest would, in order to be properly effective in this country, have to be made either by means of new legislation or by means of a formal treaty. The department regrets to say that for these reasons it feels that it would be unwise to exchange notes in the sense you suggest.
It might be remarked in passing that the present statutory provisions which control this question, so far as they affect extradition from the United States, are to be found in United States Revised Statutes, section 5271, as amended by section 5 of the act approved August 3, 1882 (United States Statutes at Large, vol. 22, p. 216), which reads as follows:
Sec. 5. That in all cases where any depositions, warrants, or other papers or copies thereof shall be offered in evidence upon the hearing of any extradition case under title 66 of the Revised Statutes of the United States, such depositions, warrants, and other papers, or the copies thereof, shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be 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.
So far as the department is aware there is no reported case in which a court of the United States has passed upon the question as to whether or not, under this statute, authentication by an American consular officer stationed in a country where the American Government has a diplomatic representative, would or would not be sufficient. This department is of the opinion, however, that a consular officer of the United States, resident in a foreign country in which the United States maintains a diplomatic mission, is not authorized under this statute to authenticate extradition papers, and that were the question raised before the courts the courts would so interpret it.
[Page 733]You will understand, of course, that if your Government should take a different view regarding the meaning of the treaty or of this statute, the question can easily be tested in the courts by submitting to the committee magistrate extradition papers certified by an American consul, whereupon the magistrate will have to pass upon the question involved in your suggestion.
Accept, etc.,