File No. 211.52L89/5.
The Minister of Spain to the Secretary of State.
Washington , March 18, 1911 .
Mr. Secretary: I have the honor to acknowledge receipt of the note your excellency was pleased to address to me under date of yesterday accompanied by a copy of the letter of the Department of Justice with a report of the United States attorney at New York forwarding the reasons advanced by Magistrate Shields for his denying the application of the consul general of Spain at New York requesting the execution of the preliminary warrant for the arrest of Tómas Loscesta and Lazareto Calvo issued by the department under your excellency’s worthy charge, and for his thus violating the textual and clear provisions of the extradition treaty in force between Spain and the United States.[Page 720]
Magistrate Shield’s claim that on making an application for provisional detention it is necessary to appear with counsel, state where, when, against whom, etc., the offense was committed—all of which are circumstances to be duly specified at the time when the formal requisition for the surrender of the criminal is formulated, and the enumeration of which is not required by the treaty to support the mere request of provisional detention—makes it impossible to effect the detention of a criminal requested under telegraphic instructions cabled by His Majesty’s Government to its diplomatic representative at this capital, as has been the case in the present instance; the course taken by Magistrate Shields affords such a criminal ample opportunity to elude the action of justice and thus defeats the object of the compact so clearly and textually embodied in the convention above referred to.
The request for the extradition of persons sentenced or indicted by a competent tribunal of one of the two countries on account of offenses included as extraditable in Article II of the aforesaid extradition treaty of June 15, 1904, in force, must be made by the diplomatic or consular officers of the contracting parties (par. 2 of Art. XI) competent, in the very words of the convention, “to ask and obtain a mandate or preliminary warrant of arrest for the person whose surrender is sought; whereupon the judges and magistrates of the two Governments shall respectively have power and authority, upon complaint made under oath, to issue a warrant for the apprehension of the person charged, in order that he or she may be brought before such judge or magistrate, that evidence of criminality may be heard and considered.” (Par. 3 of Art. XI.)
So that the only requirement of the treaty in requests for the preliminary arrest of a fugitive from justice sentenced or indicted by a competent tribunal of either contracting party is that the diplomatic or consular officer presenting the request shall do so under oath that the person who is sought has been indicted or sentenced on the charge of an extraditable crime. This requirement was faithfully complied with by this diplomatic mission of His Majesty near the Department of State, and by the consul general of Spain before the extradition magistrate. The evidences required by him are clearly specified in the article which I have just submitted, word for word, to your excellency’s consideration, to be for presentation after the accused shall have been brought before him. But in spite of the clearness of the text of the treaty and of international practice the only result thus far achieved in the case under consideration has been Magistrate Shields’ refusal to carry into effect the preliminary warrant of arrest which your excellency was pleased to issue in compliance with the request made by me under concise telegraphic instructions from my Government and in accordance with the right conferred upon me to that effect by an international treaty whose clear and positive text is not open to interpretations.
Furthermore, the said treaty textually provides (Art. XII) that when the request is made by telegraphic direction of the Government it shall be competent for the judge or magistrate to hold the accused for a period not exceeding two months so that the demanding Government may have time to lay before such judge or magistrate the proofs of the criminal responsibility of the accused, which [Page 721] proofs Magistrate Shields is in so unusual a hurry to demand before granting provisional detention. And in every case—the treaty goes on to say in its Article XIII—the request made by either of the two parties for the detention, arrest, or extradition of criminals shall be attended, to with diligence by every legal means; but the attitude of the Federal authorities in regard to compliance with the terms of the existing extradition treaty has certainly not been characterized by such diligence.
I therefore beg your excellency to be pleased to issue the necessary orders to Magistrate Shields or to the official who may have charge of the cases of requests for provisional arrest analogous to that now under consideration, so that now and hereafter the terms of the existing extradition treaty between Spain and the United States may be faithfully observed, and that the stipulations of the said treaty may not be eluded for such reasons and requirements as have been offered by the aforesaid magistrate and which are wholly foreign to the treaty.
I shall be greatly obliged to your excellency if you will kindly acquaint me with the decision finally reached in the matter for the purpose of bringing, as it must be, so grave a question to the knowledge of my Government.
I avail, etc.,