The Secretary of State to the Ambassador in Great Britain (Houghton)

No. 1734

Sir: The Department has given careful consideration to the draft of an extradition treaty which was enclosed with your Embassy’s despatch No. 3182 of November 19, 1928, together with a copy of a note from the British Foreign Office, proposing that such a treaty be concluded to replace the provisions relating to extradition contained in the Treaty of 1842 as well as the various supplementary conventions relating to extradition which were later concluded between the two Governments.

As a result of the consideration given to this draft the Department submits the following conclusions and suggestions:

Pursuant to the suggestion contained in the note from the Foreign Office it is recommended that a paragraph be added to Article 2 of the draft treaty reading as follows:

“For the purposes of the present Treaty, the territory of the United States shall be deemed to be all territory wherever situated belonging to the United States or in its occupancy and under its control, during such occupancy and control.”

It is provided in Article 3 of the draft treaty that extradition shall be reciprocally granted for the crimes listed therein “provided that the crime or offence charged constitutes an extradition crime or offence according to the laws of both High Contracting Parties”.

With respect to this proviso, it may be pointed out that the laws of the United States do not enumerate any crimes or offences as constituting extradition crimes or offences. Therefore, this proviso would not be acceptable to the United States. In this relation it may be observed that the Department understands that under the applicable rules and principles of international law a Government is not considered to be obligated to surrender a fugitive in extradition proceedings unless he is charged with a crime or offence which is made such under its laws. Therefore, the suggested proviso would seem to be unnecessary and might well be omitted. However, if it is desired that it shall be retained it might be rendered acceptable to this Government by the elimination of the word “extradition”.

Among the crimes and offences listed in Article 3 of the draft is that of “indecent assault”. With a view to determining whether such an offence is embraced under other nomenclature in the legislation of the United States it is desired that information be furnished as to the elements constituting the offence mentioned under British law, and in this relation it is deemed pertinent to point out that the offences [Page 341] of rape and unlawful carnal knowledge are also listed in Article 3 of the draft.

The same need for information exists with respect to the offence listed as No. “10. Procuration”.

Under Nos. 12 and 13 of Article 3 are listed, respectively, “maliciously wounding or inflicting grievous bodily harm” and “assault occasioning actual bodily harm”. In view of the apparent similarity of these offences, it is suggested that they might well be combined into one offence, with appropriate wording.

While pointing out that by the Treaty of May 15, 1922, between the United States and Great Britain,14 made applicable only as between the United States and the Dominion of Canada, it is provided that extradition shall be granted for “wilful desertion or wilful non-support of minor or dependent children”, it is observed that these offences are not listed in the draft submitted. The Department is desirous of having this omission supplied.

The concluding paragraph of Article 3 of the draft provides that:

“Extradition may also be granted at the discretion of the High Contracting Party applied to in respect of any other crime or offence for which, according to the laws of both the High Contracting Parties for the time being in force, the grant can be made.”

This provision would be meaningless so far as the United States is concerned since according to its laws as interpreted by the courts the executive branch of the Government is without authority to surrender a fugitive in extradition proceedings unless there is express authority of law for such surrender. Accordingly, it is suggested that this paragraph be omitted, unless the British Government should be willing to enter into the agreement contemplated thereby while understanding that for the reason mentioned it must be of a unilateral character.

It is provided in effect in Article 5 of the draft that extradition shall not take place if prosecution for the crime or offence charged shall have become barred by the statutes of limitation in either the country applying or that applied to. With respect to this provision, it may be pointed out that the extradition treaties of the United States limit the exception in this respect to the laws of one country and in most cases to those of the country applying, and this Government would prefer that the final words of Article 5, namely “or applied to”, be omitted.

Article 6 of the draft contains an exception in favor of political offenders from the obligation to surrender and this is satisfactory to the Department so far as it extends. However, the Department would prefer the addition to this article of words somewhat as follows, [Page 342] which are substantially found in recent extradition treaties of the United States:

“When the offence charged comprises the act either of murder or assassination, either consummated or attempted, the fact that the offence was committed or attempted against the life of the sovereign or head of a foreign State or against the life of any members of his family, shall not be deemed sufficient to sustain that such a crime or offence was of a political character, or was an act connected with crimes or offences of a political character.”

Article 8 of the draft provides that requisition for the extradition of an accused person must be accompanied by a warrant of arrest and evidence which would justify the arrest if the crime or offence had been committed in the country applied to and it is provided in Article 9 that if the requisition for extradition shall be in accordance with the provisions of Article 8 the competent authorities shall proceed to the arrest of the fugitive.

These provisions taken together would seem to require the production of formal documents of the nature indicated before an arrest could be brought about and would apparently result, in many cases, in such delay in making arrests as would defeat the purpose sought. Moreover, Article 10 contains further provisions of a somewhat technical character concerning the arrest of a fugitive and, in particular, refers to apprehension under a warrant issued by a police magistrate or a justice of the peace. It may well be doubted whether such officials are invested with authority under the laws of the United States to issue warrants of arrest in extradition proceedings.

In connection with the above comment concerning the provisions of Articles 8, 9 and 10 of the draft it is observed that Article 12 contains somewhat complicated provisions concerning the evidence admissible in extradition proceedings and that failure to comply with these provisions, which compliance might be difficult at all times, would be likely to result in the release of the fugitive sought.

So far as the Department is informed the present extradition arrangements between the United States and Great Britain have given satisfactory results and it is therefore suggested that in place of the provisions contained in Articles 8, 9, 10 and 12 of the draft there be substituted the following:

“The extradition of fugitives under the provisions of this Treaty shall be carried out in the United States and in the territory of His Britannic Majesty, respectively, in conformity with the laws regulating extradition for the time being in force in the surrendering State.”

In this relation reference may be made to the provision of Article VI in the Extradition Treaty of 1889 between the United States and [Page 343] Great Britain15 and to the apparent advantage in simplification which would result from the substitution suggested. However, an exception to the suggestion may be made for the first paragraph of Article 8 of the draft which provides that “subject to the provisions of Articles 17 and 18, the requisition for extradition shall be made through the diplomatic agents of the High Contracting Parties, respectively”.

It is provided in Article 11 of the draft that “no criminal shall be surrendered until after the expiration of fifteen days from the date of his committal to prison to await the warrant for his surrender”. The Department presumes that this provision is made in view of the requirements of British law. However, it may be pointed out that there is no such requirement in the laws of the United States and, therefore, a fugitive may be surrendered here without waiting for the expiration of any particular time after the date of his committal, assuming, of course, that he does not avail himself of subsequent legal remedies. In view of this consideration it is suggested that the words last quoted be omitted.

It is provided in Article 16 of the draft that:

“Each of the High Contracting Parties shall defray the expense occasioned by the arrest within its territories, the detention, and the conveyance to its frontier, of the persons whom it may have consented to surrender in pursuance of the present Treaty.”

In relation to this provision it may be pointed out that all of the extradition treaties of the United States provide in general for the payment of expenses by the demanding State and this Government considers that this is an equitable provision since such expenses are, of course, incurred at the request of the Government which makes the demand. Moreover, in view of the facts that if the United States should agree to such a provision as is made in Article 16 it would apparently require additional legislation in this country to carry out such provision and would considerably complicate matters as between the Federal Government and the governments of the several states, this Government would find it difficult to agree to such a provision and, in the event of agreement, would be placed in an inconsistent attitude with respect to certain third Governments whose requests for agreement upon a provision of this character have been declined. However, this Government would be willing to go to some lengths to accommodate itself to the apparent desire of the British Government in this matter, and while it would desire that a general provision be made that the expense of the arrest, detention, examination and transportation of the accused shall be paid by the Government [Page 344] which has presented the demand for extradition, it is disposed to consent that this be followed by a provision to the effect that the magistrates and law officers of the country where the proceedings of extradition are had shall assist the officers of the Government demanding the extradition by every legal means within their power and that no claim for compensation for any of the services so rendered shall be made against the Government demanding the extradition, provided, however, that any officer or officers of the surrendering Government so giving assistance who shall, in the usual course of their duty, receive no salary or compensation other than specific fees for services performed, shall be entitled to receive from the Government demanding the extradition the customary fees for the acts or services performed by them, in the same manner and to the same amount as though such acts or services had been performed in ordinary criminal proceedings under the laws of the country of which they are officers. It may be added in explanation of the exception last indicated that prosecuting attorneys and judges of courts of record in the United States are in receipt of salaries for their services.

You may bring the foregoing considerations to the attention of the British Foreign Office in reply to its note of November 17, 1928.

I am [etc.]

For the Secretary of State:
J. Reuben Clark, Jr.
  1. Foreign Relations, 1922, vol. ii, p. 406.
  2. Malloy, Treaties, 1776–1909, vol. i, p. 740.