Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1907, (In two parts), Part I
File No. 3294/19–26.
Chargé Vignaud to the Secretary of State.
Paris, March 8, 1907.
Sir: Referring to the dispatches from this embassy, Nos. 227, of January 22, and 234, of January 31, and also to the cables exchanged with the department concerning the Jacobs extradition case, I beg to report that by a dispatch dated February 14, a copy and translation of which are herewith inclosed, the minister of foreign affairs has communicated to this embassy the papers presented by the Argentine Government in support of its requisition for extradition of the said Jacobs, but states, at the same time, that the decision to surrender the prisoner is deferred simply to give us the opportunity of examining these papers.
[Page 419]You will note that this communication is made under reserve, as an act of international courtesy, and only for the purpose of establishing the identity of the accused, the nature of the charges, and the regularity of the proceedings.
After careful examination of the documents by myself and by the counsel of the embassy, which it was deemed advisable to consult under the circumstances, it was found that they are regular and afforded no legal ground for opposing the surrender of the accused.
Jacobs is charged with breach of trust (détourement et banqueroute), an act which constitutes a crime both in France and in the Argentine Republic, and the papers submitted furnish prima facie evidence that the offense was committed, as shown by Mr. Jacobs’s letter, also herewith inclosed.
Taking all the facts of the case into consideration, I have finally replied to M. Pichon’s note that this embassy thought it had good reason for expecting another solution of this affair and that it could now only express its regret at the decision taken.
I inclose a copy of this reply, which I trust will meet the approval of the department.
With regard to the French note I beg to call attention to the admission of the foreign office that it would be disposed to receive favorably, on the ground of reciprocity, a request for the extradition of one whose crime is not included in our treaty of extradition.
I have, etc.,
The Minister for Foreign Affairs to Ambassador McCormick.
Mr. Ambassador: The keeper of the seals makes known to me that the individual named Jacobs has received communication of the judicial documents produced by the Argentine Government upon its request for his extradition, such notification being made to him by the parquet of Marseilles.
Mr. Jacobs has made no objections to the charges brought against him and has confined himself to arguing his American nationality, which, according to his views, raises an obstacle to his being turned over to the Argentine Republic.
M. Guyot-Dessaigne considers such pretension inadmissible, international law having always sanctioned the extradition of individuals, citizens of a third nationality.
At the point now reached in the matter, the minister of justice considers that the warrant of arrest issued against Jacobs, and which is not contested by the later, sufficiently establishes the crime of fraudulent bankruptcy, and that the extradition of Jacobs ought to be accorded.
Taking into consideration, however, the interest which has been manifested by the embassy in this case, the minister of justice has decided to defer his presentation to the President of the French Republic of the decree ordering the turning over of Jacobs to the Argentine Government and has asked me to communicate to you for all proper purposes the preceding information and such as hereafter follows, annexing a resume translated into French of the judicial documents forwarded me by the Argentine Government. Should your excellency deem such course of utility, an official of your embassy may examine the original documents, in the Spanish language, which are at the present time on deposit at the office of the sous direction des contentieux, which has received instruction accordingly.
In the course of the correspondence which has passed concerning this matter, your embassy at first expressed a desire that should the extradition of Jacobs take place the forms prescribed by the French law, and such as one would be compelled to Observe if a treaty existed, would be applied.
[Page 420]The preceding information is of a nature to give you satisfaction upon this subject. The procedure followed has assured Jacobs of all the guaranties in like situations.
Your embassy, however, on the one hand has called attention to the delay resulting before the first hearing before the parquet of Marseilles, and upon the other hand to the delay upon the part of the Argentine Government in producing the documents upon which it based its demands.
Dealing with the first of these two suggestions, I noted in my letter to you of the 18th of January, that Jacobs had not on his account suffered any prejudice, no delay having resulted in the examination of the demand for extradition, which was not at that time in order because of the absence of certain judicial documents.
As to the second suggestion, it should be noted that Jacobs’s arrest having taken place on the 4th of December last, the judicial documents were forwarded by the Argentine legation on the 14th of the following January.
It is certainly desirable that the forwarding of such documents should be effected with the greatest celerity, but it may be remarked here that the period between the arrest and the arrival of the documents differs very little from the delay of forty days provided for by article 4 of the treaty proposed in 1892 between France and the United States, whereas, as a matter of fact, means of communication between the United States and Europe are very much more frequent and rapid than those with the Argentine Republic.
Looking at the matter from another point of view, your embassy has objected that there does not exist between France and the Argentine Republic any treaty of extradition. It has also pointed out that the crime of fraudulent bankruptcy, with which Jacobs is charged, is not a crime which figures among those which give rise to extradition under the conventional law in vigor between France and the United States. Your excellency on this occasion asked what would happen if his Government should demand the extradition of a citizen of the Argentine Republic accused of the crime of fraudulent bankruptcy or of some other crime not mentioned in the Franco-American treaty of extradition.
The keeper of the seals has remarked that the question seemed one easy of solution, for even though the treaty does not mention fraudulent bankruptcy, the Government of the Republic certainly would be disposed to receive favorably on the grounds of reciprocity a request based upon such a crime. Reciprocity has precisely, as a matter of fact, for object to permit of extradition either in the absence of a treaty (which is the case now under consideration with the Argentine Republic) or in case a too restrictive treaty is silent upon the subject of an infraction of a common law of interest to public order.
In sending me these observations M. Guyot-Dessaigne has added certain short remarks upon the manner in which he regards the communication which he has asked me to make to you, and which I have the honor to do by the present dispatch.
The minister of justice notes that certain treaties impose upon the country of refuge the obligation to consult the country of origin of the accused, but that no reserve of such a nature was stipulated between France and the United States. Practice in extradition matters, however, does not exclude notice given to the state of origin of the accused, but such notice is purely unofficial and constitutes simply an act of international courtesy and confers upon the country consulted no right (outside of sufficient judicial reasons) to contest the extradition. The interest of such state is bounded by the interest of all other nations and by the interest of justice itself. The keeper of the seals does not think that the option of examination thus given to the country of origin ought to extend beyond the establishment of the identity of the individual accused, the nature of the charge, and the regularity of the procedure.
Besides, as a matter of fact, it is necessary to note that usage tends to abandon, in the absence of a stipulation to the contrary, the practice of consulting the state of origin. Vis-à-vis the Government of the United States, for example, I do not find, at least during the last few years, that the question has ever arisen, and the French Government has not considered that it would become necessary for it to take the initiative in demanding such consultation. I call to your attention in this connection that at the commencement of the year 1906 the British Government having asked of the French Government the extradition of an American called Violette Tewkesbury, no notice whatever was given to the embassy of the United States.
On the 27th of March, 1906, your excellency called the attention of M. Léon Bourgeois to the situation of such accused, but such step did not have as its [Page 421] object any intervention in the examination of the case; it obviously was for the simple purpose of obtaining, according to the desire of the accused, as little delay as possible in her extradition.
Nevertheless, in view of the special interest shown in this case at the present time, it can not but have been most agreeable to the keeper of the seals to meet your desires as expressed to him. M. Guyot-Dessaigne has, consequently, asked me to transmit to your excellency his reason, which has given rise to the present dispatch, in accompanying the same with such facts as are hereinbefore set forth and the object of which is to define the conditions and the reserves under which such communication is made, and at the same time to reply to the observations formulated by the embassy of the United States.
Accept, etc.,
Mr. Jacobus to Ambassador McCormick.
Paris, February 20, 1907.
jacobs.
My Dear Mr. McCormick: I beg to return you herewith the documents communicated to me by Mr. Vignaud the day before yesterday in the matter of the extradition proceeding pending against Mr. F. L. Jacobs, an American citizen.
There would seem to be no precedent for the intervention of our Government, nor any just grounds for inquiry into any other of the facts than those which relate directly to the regularity of the proceedings had for the extradition.
In 1874 Mr. Hamilton Fish wrote to Mr. Gorham, then minister at The Hague, concerning a demand formulated by Belgium addressed to Holland asking the extradition of one Adolph Schmiderberg, an American citizen.
Mr. Fish said:
“The criminal law of this country asserts jurisdiction over all offenses committed within the territorial limits of the State or Territory enacting the law, but over no crimes committed beyond it. An American citizen, therefore, committing an offense in Europe can not be punished for that offense by the infliction of any punishment under American laws and will escape punishment altogether if he can claim the protection of his Government against a demand for extradition.
“On motives of general policy it would not be thought worth while to authorize any intervention in favor of a criminal in such case, even if he were a native-born citizen. In the case of a naturalized citizen the representative of the Government should further inquire whether he be a bona fide naturalized citizen and whether he has done any act indicating a purpose to forfeit his acquired citizenship.” (Foreign Relations 1874, p. 780.)
In 1888 Secretary Bayard, writing to Mr. Lothrop at St. Petersburg in the case of one Proios, a citizen of the United States of America, arrested in Russia for extradition to Turkey, said:
“Your opinion in regard to the case is that any intervention on the part of this Government could go no further than to see that the proceedings of the demand and surrender were regular.
“The department appreciates your thoughtfulness in reporting this case, and on the meager statements of facts before it is also of opinion that there appears to be no valid ground for remonstrance against the action of the Russian Government in surrendering Proios.” (Foreign Relations 1888, pt. 2, p. 1406.)
In Mr. Moore’s recent International Law Digest, at section 595, he quotes from a further letter of Mr. Fish as follows:
“If an American citizen commits a crime in a foreign country and escapes thence to another foreign country, between which and that therein the offense was committed there exists an extradition for offenses such as that charged, his citizenship does not afford ground for the American representative to do more than to see that his reclamation and extradition are properly made and conducted.”
I conclude that in the matter of Jacobs we have only to consider the regularity of the demand presented to the French Government and the regularity of its action thereon.
[Page 422]Examining first the form of the documents presented to the French Republic, I have the honor to advise you that in my opinion they are regular in that they comply with such formalities in this respect as proper extradition proceedings demand.
Under our own practice and procedure within the United States extradition may be asked upon such documents as constitute a prima facie showing that a crime has been committed by the person sought to be extradited. (In re Risch, 36 Federal Reporter, p. 546.)
It is held that extradition proceedings can be based upon a similar complaint and need not be based upon an indictment.
“A complaint need not set forth the offense with the precision and particularity of an indictment. It is sufficient that it set forth the substance of the offense so that the court can see that the crime charged is one of those enumerated in the treaty.” (In re Adutt, Federal Reporter, p. 376.)
In the case of Benson v. McMahon, decided in the Supreme Court of the United States in 1888, the court says:
“That the proceeding before the commissioner to determine whether a given person shall be surrendered by extradition ought not to be regarded as in the nature of a final trial by which such person could be convicted or acquitted of the crime charged against him, but rather of the character of those preliminary examinations which take place every day in this country for the purpose of determining whether a case is made out which will justify the holding of the accused either by imprisonment or under bail to ultimately answer to an indictment or other proceeding in which he shall be finally tried upon the charge made against him.” (127 U. S., p. 457.)
The documents submitted to the French Government are sufficient in form for submission to an American committing magistrate, and he would be justified upon affidavits such as are submitted in holding for trial the person named in such affidavits.
As to the contents of the documents submitted and the sufficiency of the crime charged, it is generally recognized as a principle in extradition cases that the act complained of must be such as constitutes a crime not only in the country where the act was committed but as well in the country of refuge.
It appears that Mr. Jacobs is charged with “détournement et de dissimulation de biens au préjudice de ses créanciers, acte délictueux prévu par l’art. A. 200 ch. III, Titre 8, Section lère, livre 2 du Code Pénal argentin * * * s’étant enfui le 5 Novembre 1906 * * * en emportant toutes les valeurs appartenant à des tierces personnes qu’il deténait.”
I find that the French Code of Commerce, section 591, defines the crime of “banqueroute,” using the words “détourner ou dissimuler une partie de son actif,” and that by section 404 of the French Penal Code “les agents de change et courtiers de bourse “are punished by an excessively heavy penalty in cases of “banqueroute.”
The crime is, therefore, defined in section 591 of the Code de Commerce in the very terms of the warrant; the penalty is provided in section 404 of the Penal Code.
The act being a crime both in the Argentine Republic and in France, we have, lastly, to examine the facts” to determine if the allegations contained in the papers submitted establish prima facie the crime charged.
It appears from the declarations that Mr. Jacobs at the time that he left the Argentine Republic was indebted on the Bourse de Commerce to the amount of several thousand piasters; that he was also indebted to Mr. Cesar Rocca for the sum of 39,000 piasters; that he was indebted to Mr. Otto A. Rhode for the sum of 4,750 piasters.
It appears that Mr. Jacobs received on October 31 2,200 shares of the Society Anonyme “Mato Grosso Gold Dredging Company,” and paid therefor 16,000 piasters; that he received on October 26 5,000 shares of the Quais Catalinas and that he received on October 31 4,000 shares of the same company, and that these 9,000 shares had theretofore stood as security for the sum of over 67,000 piasters.
Without closer examination, therefore, of the documents submitted, it appears that while owing approximately 100,000 piasters Jacobs suddenly left Buenos Aires, although within the week immediately preceding his departure he had received shares to the value of at least 70,000 piasters, and the greater part of which shares he received on the 31st of October, sailing on the 5th of November.
[Page 423]I think that a prima facie case is made out, and that a burden rests upon Jacobs, if he would avoid the presumption of his guilt, to show as a matter of fact what has become of the shares of the Mato Grosso Gold Dredging Company and of the Quais Catalinas.
I received this morning a memorandum from Mr. Kelly, hurriedly dictated at Coucy, in reply to a copy of your letter and of the documents that I mailed him. Such note is in accord with what I find, after careful investigation, to be clearly the law upon the situation. Mr. Kelly says:
“My own impression is that we have no right to anything more than the unofficial communication of the papers; in other words, that the minister of justice is right. Again, it seems pretty clear from the correspondence that Jacobs is charged with a very definite offense—that is to say, having taken securities and run away with them. If he can not account for the 5,000 shares of the Catalinas, which it seems were handed to him by the Banco Germanico della America del Sud, he seems clearly to have left the Argentine Republic for the purpose of defrauding his creditors.”
Mr. Jacobus to Chargé Vignaud.
jacobs.
My Dear Sir: I have the honor to further write you in the matter of Jacobs.
Following upon my last conversation with you in this matter I called at the ministry of justice. I found that the dossier was not in the hands of the ministry of justice, but still with the ministry of foreign affairs. Thereafter Mr. Preston called at the ministry of foreign affairs and examined such dossier. I beg to confirm what he has already told you in person.
The document upon which the demand for extradition is based shows that there has been a criminal proceeding against Jacobs in the Argentine Republic, which prosecution is still there pending. A magistrate has taken jurisdiction in the matter and there has been filed with him original affidavits charging Jacobs with a specific criminal act. The affidavits are supported and strengthened by letters signed by an Argentine bank and by a receipt signed by Jacobs. In addition to the fact that these complaints contain sworn statements of facts, the exhibits annexed to them support the presumption of guilt and are in the nature of circumstantial evidence that goes to the strengthening of the sworn statements. Copies of all of these documents are legalized and forwarded to France and are found in the dossier of the ministry of foreign affairs.
There can be no doubt but that the dossier sufficiently charges a crime and the documents upon their face are regular and sufficiently legalized.
In a recent decision of the United States circuit court for the southern district of New York in the matter of Neely, Judge Lacombe said, speaking of the latter’s extradition:
“There has not been so much hypercriticism in dealing with objections as to form, and if the certificates, signatures, and so forth, are in substantial conformity with the requirements of the statutes, and give reasonable assurance of authenticity, it is sufficient.”
I can not but confirm the letter I have already written you in this matter, and it seems to me that there is no ground for protest by our Government under the proceedings which have been taken.
Yours truly,
Chargé Vignaud to the Minister for Foreign Affairs.
Paris, March 7, 1907.
Sir: I have the honor to acknowledge the receipt of your excellency’s dispatch of the 14th of February, by which the papers in support of the requisition of the Argentine Government for the extradition of an American citizen, Jacobs, are kindly communicated to this embassy.
[Page 424]These papers which seem to be regular, and for the perusal of which this embassy is obliged to your excellency, confirms the fact that the extradition of this American citizen is demanded on the ground of having committed an offense, fraudulent bankruptcy, which could not be made the basis of a similar request on the part of the United States.
Although it is admitted that this is not a sufficient cause for opposing the requisition of the Argentine Government, this embassy had considered, and still considers, that the Government of the French Republic is not obliged to grant the extradition of this American citizen, because, although it is true that a promise of reciprocity engages as well as a treaty, it does not involve the same obligations.
A treaty is definite in its terms; it specifies cases and prescribes rules from which the contracting parties can not depart. It is not so with a promise of reciprocity which engages only in a general way and leaves much latitude for the execution.
Under these conditions this embassy had believed and still believes that by its interposition in the case of Jacobs, based, among other reasons, on this consideration to grant to a foreign government the extradition of an American citizen charged with the offense of fraudulent bankruptcy, would be doing more for that government than could be done for the United States, it furnished to the French Government a legitimate motive for refusing this extradition and also for taking into kind consideration, without much cost, our pressing representations.
The embassy was the more led to indulge in this hope that the circumstances of the case are such that, if I am well informed, the examining magistrate at Marseilles did not believe he could report in favor of the extradition.
If I understand well your excellency’s dispatch, the Government of the French Republic has come to a different conclusion. Such being the case, I have nothing to add to what has already been said with reference to this matter, and it only remains for me to express the regrets which this decision causes the embassy.
Accept, etc.,