On the 3d instant an instruction, No. 985, was sent to you, directing you to make formal request for the extradition of Kratz, to present the documentary evidence in the case, and to give the assurance and promises required by the Mexican extradition law. As showing the basis of the view of this Department, that extradition treaties apply to offenses committed prior to their conclusion unless they expressly provide otherwise, I inclose herewith a copy of the opinion of the district court of the United States for the southern district of New York (Blatchford, J.) in the case of In re De Giacomo (12 Blatchford, 391). The Department has advised the Missouri State authorities of the necessity of providing the officer who has gone to Mexico to take Kratz into custody with ample funds to employ legal counsel there. I am, etc., Mr. Clayton to Mr. Hay. JOHN HAY. No. 2014.] EMBASSY OF THE UNITED STATES, SIR: In relation to the Kratz extradition case, I have the honor to report that on Friday last, after having presented Captain Reeve, the new military attaché at this embassy, to the President, I turned the conversation to said case, remarking that President Roosevelt felt a deep interest in it, and that my Government hoped that the Government of his excellency would find it consistent to grant the requisition for the surrender of Kratz. I stated that I had carefully studied the Mexican extradition law and had been unable to find any obstacle that I considered in the way. The President replied that it was not so much a question of law as it was a question of comity, and that I would find that the Mexican flag would not be used to shield criminals. From what the President said, and his manner, I feel greatly encouraged in the belief that the extradition will be granted. The papers in the case have not yet been received at this embassy. I have, etc., POWELL CLAYTON. Mr. Clayton to Mr. Hay. [Telegram.-Paraphrase.] EMBASSY OF THE UNITED STATES, Mexico, November 16, 1903. (Mr. Clayton reports that the requisition for the extradition of Kratz has been made by him, and that the promises expressed therein as required by Mexican law are satisfactory to the Mexican Government.) « Not printed. No. 2037.] Mr. Clayton to Mr. Hay. EMBASSY OF THE UNITED STATES, SIR: Referring to Department's instruction No. 985, of the 3d instant, I have the honor to report that on the 14th instant I delivered in person to Mr. Algara the requisition for the surrender of Charles Kratz, with accompanying papers. Upon reading the requisition, Mr. Algara seemed to be somewhat uncertain as to the sufficiency of the language used in the promise of reciprocity, suggesting that the promise, perhaps, should be "strict reciprocity in any similar case," omitting the words "bribery committed in Mexico prior to the date of the supplemental convention between the two countries." He was not, however, insistent. The next day (Sunday) I called upon him again and remarked that if there was any doubt as to the sufficiency of the language submitted by me, I preferred that he would withhold the requisition until I could communicate with the Department and obtain its permission to use language that would be satisfactory to him. He replied he thought the language was sufficient, but that he would see the President the next day, and after receiving his views would inform me. I called at the foreign office on Monday and was pleased to learn that the language was deemed sufficient, and that the papers would be sent at once to the district judge at Guadalajara. During this latter interview, Mr. Algara expressed some discontent at the action of Mr. Desmond, who bears the President's warrant, in calling upon President Díaz in relation to the extradition, and at certain newspaper interviews. He said that it would be better if Mr. Desmond would return to the United States and await the action of the authorities, which he said might cover a period of four months before a final conclusion is reached. I expressed surprise at the length of time he seemed to think the proceedings may require, and said that I hoped his department would expedite them as rapidly as consistent. I inclose herewith a copy of the requisition. In connection with this case, I also respectfully acknowledge the receipt of your instruction No. 988, of the 6th instant, and inclosure. Mr. Algara having expressed a desire to be furnished with a copy of the decision upon which the Department bases its views as to the retroactive effect of the extradition treaty between the two countries (see inclosure 4, dispatch No. 1996), I have transmitted to him with my note of to-day-copy inclosed-a copy of the opinion of the district court of the United States for the southern district of New York (Blatchford J.) in the case of In re De Giacomo (12 Blatchford, 391). I have, etc., POWELL CLAYTON. [Inclosure 1.] Mr. Clayton to Mr. Algara. EMBASSY OF THE UNITED STATES, MR. SECRETARY: In pursuance of my Government's instruction, and of the promise made in my note to your excellency of October 20 last, requesting the provisional arrest and detention of Charles Kratz, I now have the honor to request of the Government of the United States of Mexico the surrender of Charles Kratz, a fugitive from the justice of the United States, charged with bribery in the State of Missouri, to the Government of the United States of America, so that he may be returned to the State of Missouri for trial. I have the honor to transmit herewith the formal proofs, duly authenticated, upon which this requisition is based, with the translation of the same into Spanish. Pursuant to the aforesaid instruction, I have the honor to notify your excellency's Government that the Government of the United States of America makes, in this case, the promises required by the Mexican extradition law of May 19, 1897, and promises strict reciprocity in any case of bribery committed in Mexico prior to the date of the supplemental convention of extradition between the two countries. I avail, etc., POWELL CLAYTON, [Inclosure 2.] Mr. Clayton to Mr. Algara. EMBASSY OF THE UNITED STATES, MR. SECRETARY: Your excellency having expressed a desire to see the judicial opinion upon which the Department of State bases its views as to the retroactive effect of the existing treaty of extradition between the two countries, I have the honor to transmit herewith a copy of the same. I avail, etc., POWELL CLAYTON. Mr. McCreery to Mr. Hay. [Telegram.] EMBASSY OF THE UNITED STATES, Note just received from foreign office stating President has granted extradition Kratz. Mr. McCreery to Mr. Hay. MCCREERY. No. 2092.] EMBASSY OF THE UNITED STATES, SIR: Referring to the ambassador's No. 2037, of November 18 last, I have the honor to inclose copy and translation of a note from Mr. Mariscal, and of the copy of the order of the President, therewith transmitted, granting the extradition of Charles Kratz, accused of bribery in Missouri. * I have, etc., FENTON R. MCCREERY. [Inclosure.-Translation.] Mr. Mariscal to Mr. McCreery. DEPARTMENT OF FOREIGN AFFAIRS, MR. CHARGÉ D'AFFAIRES: Referring to Mr. Clayton's note of November 14 last, in which he was pleased to ask for the extradition of Charles Kratz, accused of bribery in the State of Missouri, I have the honor to transmit herewith a copy of an order of the President, who decides that the extradition of the said Kratz should be and is granted. IGNO. MARISCAL. I renew, etc., [Subinclosure.--Translation.] Order of the President. Having examined the proceedings had in the matter of the demand presented by his excellency the American ambassador for the extradition of Charles Kratz, for the crime of bribery committed in the city of St. Louis, Mo.; It appearing that said extradition was asked for as a matter of reciprocity by virtue of our law upon the question, and not upon the basis of the existing treaty between Mexico and the United States of America; It appearing that the crime of which Kratz is accused consists in that he, being a member of one of the chambers of which the municipal council of the said city is composed, accepted the offer of a certain sum of money, which was deposited for that purpose, and promised to give his vote and to procure that of his associates, in favor of a grant to a railway company of certain privileges and franchises which, in effect, was made by the said chambers; It appearing that the proper proceedings have been instituted before the district judge of the State of Jalisco, the nine exceptions, which will hereinafter be considered, having been entered by the accused, and argument having been heard, the said functionary, in accord with the opinion of the agent of the public ministry, decided that the extradition was legal, and transmitted the original record to this department and placed the accused at the disposition of the same: Considering that with respect to the first exception, or say that because of the existence of a treaty of extradition, the law of May 19, 1897, does not govern, and that in accordance with the doctrine generally accepted, the enumeration of crimes in a treaty of this kind does not limit the power of one of the contracting nations to deliver to the other those accused of any offense not included in the said enumeration. "Les traités d'extradition enumerent d'ordinaire les crimes ou les attentate que la mesure doit atteindre. Cette nomenclature est regardée par les legistes, dont l'esprit étroit n'encheine pas la liberté d'action au texte littéral et judaique des stipulations conventionnelles comme purement énontiative et non comme limitative, c'est à dire qu'elle alisee de part et d'autre subsister le droit de demander aussi bien que d'accorder l'extradition pour des faits autres que ceux mentionnés dans leur conventions, toutes les fois que les faits ont une gravité suffisant pour commander une rêpression pénale ou rendre l'impunité dangereuse. Il va sans dire que cette latitude d'étendre la portée des conventions peut être neutralisée par une clause formelle en sens contraire et demeure en tout cas subordonée à la condition de réciprocité." (Calvo, Vol. II, par. 1056.) The "Repertoire du Droit Francais," by Carpenter and du Saint, volume 22, under the word "Extradition," No. 81, based upon many decisions and upon the opinions of the most noted authorities, such as F. Helie, Garraud, Bertauld, Bonafos, Billot, Despagnet, Felix, and others, sums up the doctrine upon this point as follows: "Nous pouvons, donc, conclure qu'en l'absence de tout traité sur la matière, les gouvernements sont, en principe, libres de livrer les fugitives à la justice du pays qui les réclame de même que l'existence, entre deux gouvernements dè un traité d'extradition special à certains crimes determinés ne met pas à obstacle à ce que l'extradition soit accordée pour d'autres crimes que ceux qui y sont especifiés." Considering that articles 1 and 20 of our law of May 19, 1897, are in no wise opposed to the above principles, to which, as to all which relates to this matter, a broad interpretation should be given, in view of the marked and salutary tendency of all cultured peoples to give the greatest amplitude to extradition in favor of the high interests of the law and mutual benefit; that the lack of an international stipulation, the lack of the treaty of which these articles speak, occurs in the same manner when there is no agreement, and when, there being one, there is an omission in it, and so, according to the usual practice, when there is an omission in our treaties in regard to the form referred to by article 1, that is to say, when the proceeding to be followed is not prescribed in them the one established by our law is applied, and also when in the same any crime is omitted the provisions of the said law should be observed with regard to it; that it can not be understood why the Government which, in the absence of any treaty, may grant extradition, should be deprived of the power to do so when, such an international agreement being in existence, there might be an omission in the same; that the substantial difference between the one and the other case consists in that in the first the country upon which the demand is made is under the strict obligation to deliver the accused, and in the second there is no such obligation, but there is no reason whatever to deprive it of the right to make the delivery voluntarily in view of the circumstances. Considering that the law of May 19, 1897, is applicable, the second exception made by the defendant, relating to the violation of artice 14 of the federal constitution, has no foundation. Considering, with regard to the third exception, that the act of which Kratz is accused is not punishable in the State which makes the demand (section 1, article 2 of the law), in order to decide the said point it is useless to examine the definition of the crime of bribery contained in the amendment of May 28 last to the treaty of extradition, which is altogether inapplicable to the case because of its being posterior, but the laws of the State of Missouri, of which a certified and authenticated copy appears among the documents presented by the American embassy, according to which the act imputed to the accused is punishable, should be considered. Considering that in the matter of the fourth and fifth exceptions, both based on section 2 of the law of extradition and relating to the illegality of the latter because of the magnitude of the penalty applicable to the case, the truth is that it is not a question of a simple attempt, but of a crime committed; for, although Kratz did not receive any sum of money, the act of which he is accused is fully included in the definition of bribery contained in article 1014 of the penal code of the district, as he accepted offers and promises to perform an act in the exercise of the office which he filled, and, besides, he consummated that act, for he gave his vote in the assembly to which he belonged and procured its approval of the concession asked for by the railway company, which was what he was obligated to do; and, finally, even if it had not been so that is to say, that even if the act had not been consummatedarticle 1015 of the penal code expressly provides for this case and prescribes for it the penalty of two years' imprisonment, a greater than that imposed by said section 2 of article 2 of the law. Considering that the sixth exception, that of prescription of the criminal action (section 5, article 2 of the law), has no foundation, for, according to our law (article 274 of the penal code), the prescription was interrupted by the judicial proceedings had in April, 1902, and, in accordance with the laws in force in St. Louis, Mo., of which there is a certified copy attached to the demand, prescription does not run in favor of fugitives from justice. Considering, with respect to the seventh exception, that of want of proof of the corpus delicti of the crime of which Kratz is accused (section 1 of article 16 of the law), which, as has been already said, is not applicable because of the amendment of the treaty of extradition being posterior to the act, and, therefore, it is useless to study the definition of bribery contained in the said amendment; that it is clear that article 103 of the code of criminal procedure of the district, which relates to crimes which cause damage to persons or property, is also not applicable; that bribery is a crime sui generis for which no special proof is designated by the law and which is proved, therefore, according to article 104 of the said code, by the elements which constitute it, as established by Chapter IV, Title XI, Book III of the criminal code of the district, which are proved by the documents attached to the demand; that in regard to the objection based on the lack of proof as to the legality or illegality of the act committed by Kratz and, consequently, of the corresponding major or the minor penalty, sufficient data are given in the said documents to show the illegality of such act. In the first place, in the finding of the grand jury against Kratz it is stated that he had obligated himself, because of the bribe, to use his power as a member of the municipal council in a manner contrary to the laws of his country; that is to say, by voting in favor of a grant not authorized by the said laws. Besides, it is proved by the testimony of several witnesses that the said grant being pending before the chamber of delegates, one of the branches of the municipal council, after having been approved by the other branch, it could not be approved in the said chamber because of an injunction or prohibition of the circuit court of St. Louis, Mo., which causes the belief that the petition of the railway company which bribed Kratz was highly prejudicial to the interests of the city, a thing which, on the other hand, the large sum offered for the procurement of the franchise in question would be sufficient to excite suspicion. Considering, that with respect to the eighth exception, based on article 16, section 3, and relating to the authentication of the documents attached to the demand, the defects alleged by Kratz's attorney relate only to certain irregularities in the said documents which can only be decided by the country which makes the demand, and not to the authenticity of the same, which is perfectly proved by the said authen tication. |