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Mr. Clayton to Mr. Flay.
EMBASSY OF THE UNITED STATES,
Mexico, October 14, 1903. Sir: I have the honor to acknowledge the receipt at 4 p. m., Saturday last, of Department's telegraphic instruction of the 10th instant relating to the extradition of Charles Kratz, which I brought to the attention of the foreign office on Monday by leaving a copy of said telegram with Subsecretary Algara, so that he might study the questions involved, and with the understanding that I would call on Tuesday to further discuss the matter with him, which I did on that day. At this interview it was agreed that upon our promising reciprocity in any similar case, and upon compliance with articles 4 and 16, and paragraph 1, article 32, of the Mexican extradition law of 1897, the Mexican Government would surrender the accused. It was definitely understood that the language to be used in the promise of reciprocity should be: “ The United States of America will reciprocate in any similar case,” meaning any case of bribery arising in Mexico committed prior to the supplemental convention.
Mr. Algara fixed the time that the prisoner can be held provisionally, in case his provisional detention should be requested, at forty-five days.
Having arrived at this understanding, I immediately telegraphed the Department. My suggestion therein contained as to the immediate request for his provisional detention is based upon the fact that the papers in the United States have been discussing his extradition under this process, the Mexican Herald, in an editorial of last Monday, indulged in similar discussion; hence I feared that Kratz might become alarmed and seek refuge elsewhere. I have, etc.,
Mr. Hay to Mr. Clayton.
DEPARTMENT OF STATE,
Washington, October 15, 1903. (Mr. Hay instructs Mr. Clayton to request of the Government of Mexico the provisional arrest and detention of Charles Kratz for bribery in Missouri, where warrant of arrest has been issued.
Mr. Hay states that formal papers are being prepared; that the Mexican law of 1897 will be fully complied with; that strict reciprocity is promised by the Government of the United States; and that the fugitive is said to be at Guadalajara.)
Mr. Clayton to Mr. Hay.
Mexico, October 21, 1903. (Mr. Clayton reports that he made request on October 20 for the provisional detention of Kratz.)
Mr. Clayton to Mr. Hay.
Mexico, October 22, 1903. (Mr. Clayton reports that he has been informed by the Mexican foreign office that Kratz was arrested at Guadalajara on October 20, and that the requisition for his extradition must be made withiu thirty days from that date.)
Mr. Clayton to Mr. Ilay.
EMBASSY OF THE UNITED STATES,
Mexico, October 24, 1903. Sir: I have the honor to acknowledge the receipt of Department's telegraphic instruction of the 15th instant.
I was sick at Cuernavaca when it came, and the delay in its execution is explained by the following quotation from a letter from Secretary Hoefele to me of the 20th instant:
I regret to inform you that owing to what appears to have been carelessness on the part of some servant at your house a telegram from the Department, dated the 15th, only came into my hands this morning. Mrs. Clayton sent it to me with a note, saying that she found it stuck in between some papers on her table. I immediately sent the request to the foreign office, in accordance with the instructions you gave me in the matter before your departure.
Before leaving for Cuernavaca, in expectation of such instruction and for the facilitation of its execution, I signed an application for the arrest and provisional detention of Kratz, leaving the date blank, which Secretary Hoefele filled in, and handed the application to Mr. Algara upon the morning of the 20th instant. This application did not promise in the exact language of your instruciion strict reciprocity and compliance with Mexican law. In view of the delay referred to Mr. Hoefele thought it best to send the application as drawn by me, which the Mexican Government has accepted as sufficient. As I understand the Mexican law there must be two promises of reciprocity-first, of provisional detention; second, of surrender. In the preparation of the requisition in this case, unless the Department otherwise directs, I shall include a promise of strict reciprocity and full compliance with the Mexican extradition law of May 19, 1897 (see article 4).
On the 21st instant I telegraphed Mr. Algara as follows: Very important provisional detention requested yesterday should be executed with utmost dispatch.
Upon the same day I received his reply stating that the arrest of the accused had been effected at Guadalajara on the 20th instant, and that thirty-five days would be allowed for the presentation of papers in the case.
On yesterday, not receiving the physical relief at Cuernavaca I had hoped for, I returned to this capital and to-day Secretary Hoefele has handed me a note from the foreign office, copy inclosed, received at the embassy on the evening of the 22d instant, after office hours, relating to the provisional detention of Kratz, and to questions which doubtless will be raised in the extradition case. The minister's refer ence, in paragraph 3 of said note, to article 2, is doubtless an error,
and should be article 13. I have to-day replied to said note, copy inclosed. In this reply I did not deem it wise to express my personal views as to the questions referred to by Mr. Algara; doubtless the Department will prefer to refer these questions to its law officer.
I believe it safe to assume that this extradition case will be fought by Kratz and his friends with the utmost vigor and with the best lawyers that money will command, at every stage of its proceedings, doubtless ending at last in the supreme court of the Republic, which court I do not think will overrule the decision of the executive department, whatever it may be.
I inclose a copy of my telegram of the 22d instant to Mr. Algara, expressing my high appreciation of the prompt and effective action of his Government in the arrest of Kratz. I have, etc.,
[Inclosure 1.- Translation.] Mr. Algara to Mr. Clayton.
DEPARTMENT FOR FOREIGN AFFAIRS,
Mexico, October 20, 1903. MR. AMBASSADOR: I have received the note of even date, in which, in the name of your Government, your excellency is pleased to ask for the provisional detention of the American citizen Charles Kratz, accused of the crime of bribery committed in the State of Missouri.
Your excellency is pleased to add that Kratz's arrest has been ordered by competent authority, and to promise reciprocity in every like case, and to present the demand with the proofs of fact and law required by the Mexican law of extradition of May 19, 1897.
The petition contained in your excellency's note to which I refer is in accordance with the precepts of article 2 of the said law, and in this view the Executive has had no objection in granting it, and has consequently directed the governor of the State of Jalisco to procure the detention of the accused, fixing the term of thirty-five days for the presentation of the extradition papers in due form.
I think it proper to make a statement of this case: In May, 1902, your excellency was pleased to ask, by direction of your Government, for the extradition of Kratz for the said crime of bribery, and this department did not grant the said petition for the reason that the offense was not included in the treaty of February 22, 1899.
Promise of reciprocity and submission of the Government of the United States to our general extradition law were not offered at that time by the Government of the United States.
A remedy was found for this condition by the celebration of an agreement between Mexico and the United States by which the crime of bribery was added to the list of those included in the treaty of 1897.
The new treaty went into effect on July 25, 1902, and the difficulties which attended cases like that of Kratz were obviated for the future, but not for the one in question, as the embassy understood that the Mexican Government could not give retroactive effect to the treaty, and apply it to cases which had arisen before its celebration.
In this state of things, after conference had been had with the undersigned with regard to the antecedents referred to, your excellency was pleased to present the petition for extradition contained in the note to this department to which I reply.
It has been said, even by the press, that the Government of the United States did not give retroactive effect to treaties of extradition, an opinion with which this department does not concur, as already stated, for the reason that extradition is like a criminal cause-it has the same results, and that which could not be admitted in a criminal cause can not be accepted in a proceeding for extradition.
This department respects the opinion in question of the United States, the basis of which it does not know and which it would like to know, because of the gravity of the point and the legislation of both countries being very similar.
Putting aside, then, in view of what has been set forth, the retroaction, the difficulty as to grant or not to grant the extradition remains, in view of that which is established by our general law on the matter, article 1, Section II, concordant to article 32 of the said law.
“In the absence of an international stipulation, the stipulations of this law shall be observed." This is the text cited: Should it be understood to mean that a treaty having been celebrated under it, and nothing more, can extraditions be granted, limiting the powers of both Governments to the letter of the treaty? Or, on the contrary, without prejudice to the precise fulfillment of the treaty, are they empowered to grant extraditions under the principles admitted by their respective legislations, and with due regard to the formalities required?
In the United States the principles which govern extradition are rigorous, and it appears that the Department of State does not grant extradition outside of the treaties, and does not consider that the President has power to act in that sense, with promises of reciprocity or other things, to other States.
The rules observed by Mexico are not go restrictive, although it must be remembered that they are not to be in anywise considered obligatory; but, on the contrary, altogether voluntary on the part of the Executive of the Union, who will act in all cases, in accordanie with the circumstances, with all justice and prudence.
Be this as it may, the United States, in formulating its petition for the extradition of Kratz, has conformed to our law of extradition, has promised reciprocity, and later will extend this promise to all the points included in article 4 of the said law, Such being the case, the President has found no objection to ordering the immediate provisional arrest of Kratz, in the terms expressed above, the proper extradition suit to be begun so soon as the same may be effected.
The legal exceptions that may be presented in this cause, herein superficially indicated to your excellency, and it is possible that they may be amplified and added to by the suspect, must all be taken into consideration by the district court of Jalisco, and afterwards by this department, in the terms, of which your excellency is aware, established by lax, and finally by the federal court in appeal for amparo, which may be interposed by the suspect in a case of adverse decision by the district judge or by this department.
In view of the peculiar circumstances in the case of Kratz, the interest manifested by the Government of the United States in his extradition, and the character and gravity of the crime of which he is accused, the President has granted the demand presented by the Government of the United States, without prejudice to the judicial questions mentioned.
I have formulated this statement because of the importance of the matter, in view of the circumstances of law and fact presented, believing that the Executive has acted in the case in a manner corresponding to the friendly relations which unite the countries. I renew, etc.,
Mr. Algara to Mr. Clayton.
Mexico, October 21, 1903. Suspect was arrested yesterday at Guadalajara. Thirty-five days allowed for pres. entation of papers.
Mr. Clayton to Mr. Algara.
EMBASSY OF THE UNITED STATES,
Mexico, October 24, 1903. MR. SECRETARY: I have the honor to acknowledge the receipt of your excellency's note of the 20th instant, received at this embassy on the afternoon of the 21st instant after office hours, relating to my late request for the arrest and provisional detention of Charles Kratz, charged with the crime of bribery in Missouri.
I do not understand that in May, 1902, I requested the extradition of Kratz, but that Mr. McCreery, then chargé d'affaires ad interim, on the 1st of May of that year informally asked Mr. Mariscal whether the Mexican Government would consider a request for such extradition, informing him at the same time that the Government
of the United States could not promise reciprocity. Mr. Mariscal replied that the request could not be considered under the extradition treaty, nor could it be under the extradition law without the promise of reciprocity. This ended the matter for the time being, and no request for the extradition of Kratz was then made.
In the third paragraph of your excellency's aforesaid note the following language occurs: “The petition contained in your excellency's note, to which I refer, is in accordance with the precepts of article 2 of the said law." Should not the article in question be 13 instead of 2?
I note that the forty-five days' period of provisional detention, verbally agreed upon between your excellency and myself, has been reduced to thirty-five days. I presume, however, that the period thus reduced will be sufficient to enable my Government to comply with the subsequent formalities.
I have to-day forwarded to the Department of State at Washington a copy and translation of your excellency's note. "To the questions foreshadowed therein it will doubtless give careful consideration, and I thank your excellency for thus indicating them. I avail, etc.,
Mr. Hay to Mr. Clayton. No. 985.]
DEPARTMENT OF STATE,
Washington, November 3, 1903. Sir: I have to inform you that the President has issued his warrant authorizing William Desmond to take into custody Charles Kratz, a fugitive from the justice of the United States, charged with bribery, who has taken refuge in Mexico, and who is to be surrendered to the proper authorities of the United States.
The telegraphic correspondence between you and the Department shows that the provisional detention of Kratz was granted by the Mexican Government as an act of comity, upon the assurance by this Goyernment of reciprocity, should occasion arise.
In formally making the request for Kratz's extradition, which I now instruct you to do, you will notify the Mexican Government that the Government of the United States makes the promises required by the Mexican 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 inclose the papers in the case, duly authenticated by the Mexican consul at St. Louis, and by this Department. The certificate of the Department will require authentication by you.
Mr. Desmond has gone to Mexico, and he will place himself in communication with you. The warrant of surrender is, therefore, inclosed herewith, for delivery by you to him. I am, etc.,
Mr. Hay to Mr. Clayton. No. 988.]
DEPARTMENT OF STATE,
Washington, November 6, 1903. Sir: I have to acknowledge the receipt of your dispatch No. 1996, of the 24th ultimo, confirming your telegram of the 21st ultimo, reporting the arrest and provisional detention of Charles Kratz, and inclosing a copy of correspondence with the Mexican foreign office in relation to the desired extradition of the fugitive.