File No. 211.52L89/5.
The Secretary of State to the Minister of Spain.
Washington , March 27, 1911 .
Sir: I have the honor to acknowledge the receipt of your note of the 18th instant relative to the action of United States Commissioner Shields in declining to cause the provisional arrest and detention of Loscesta and Calvo upon the application of the Spanish consul general unless the place, time, and name of party against whom the offense charged was committed were specified.
Referring to your quotation from paragraph 3 of article 11 of the treaty of extradition between the United States and Spain, I beg to call your attention to the language of the latter part of that quotation. After stating that it shall be competent for the diplomatic or consular officer of the contracting parties to ask and obtain a mandate or preliminary warrant of arrest for the person whose surrender is sought, it provides: “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 the evidence of criminality may be heard and considered,” etc. By this provision, which corresponds with the provisions of our extradition law, the authority of the magistrate to act in the case is based upon “a complaint made under oath.” It is well settled by the decisions of the courts of the United States in extradition cases, that, while the complaint need not have the precision of an indictment, it is essential that it should set forth clearly the substance of the offense charged, so that the party accused [Page 722] may understand precisely what he is charged with. It must set forth the substantial and material features of the offense. (In re Farez, 7 Blatchford, 34; 5 Blatchford, 414; In re Adutt, 55 Fed. Rep., 376.) In the case of In re Farez, where the charge was forgery, the court held that it was not enough to charge in the complaint the crime of forgery generally, but that time and place and the nature of the forgery and of the forged instruments must be sufficiently specified. In the case of Ex parte Van Hovon (4 Dillon Reports, 411), also a case of forgery, which arose under the Belgian treaty which contains a provision using language almost identical with that contained in the Spanish treaty, a complaint was held insufficient which did not specify the kind of obligations forged, or the character of the papers, or the nature of the instruments of credit forged.
It would appear, from the letter of the Attorney General and from the statements in your note, that it was not possible for your consul general to make a complaint containing the allegations which are by our courts declared to be essential. Under these circumstances it is submitted that it can not be said that United States Commissioner Shields has failed to observe the stipulations of the treaty.