File No. 25010/43.
I have the honor to return herewith the papers forwarded by you as
containing the record of the proceedings conducted by the court of Como
in the Charlton murder case. As the department pointed out in its letter
to you of July 22 (with which it returned to you a copy of the warrant
of arrest issued in this prosecution) this case is now in the hands of
the court, and is not before this department; nor will it properly be
before the department until the extradition magistrate shall have
committed the accused for surrender; and therefore, as the department
has already stated, all documents, papers, etc., which the Italian
Government may have to offer in the case should be presented directly to
the court now having the case in charge.
Concerning your request for the issuance of a “Federal warrant,” I have
the honor to call your attention to the department’s telegram of June
24, in which you were informed that under the extradition procedure
followed in this country the National Executive issues no Federal
warrant in extradition cases until the fugitive is surrendered; and
surrender takes place only after the matter has been fully considered by
the courts and by the department which reviews the decision of the
courts, both branches of the Government having to concur in the
surrender. It is not perceived that there is anything from the regular
procedure uniformly followed in extradition cases (even were such a
course possible, as it is not, under American law), for which procedure
the department is pleased to refer you to the following cases in which
extradition proceedings have been instituted by the Government of Italy:
Liberantonio Merolle (1907); Francisco Surace (1908); Pellegrino Mule
(1908); and Settimio Perrotta (1908).
In view of your remark that the department has already issued a
“preliminary certificate of arrest” in this case, I am constrained again
to direct your attention to the actual situation set forth in the
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department’s letter to you of
June 28 (which inclosed the preliminary mandate requested), in which you
were advised that such mandate had no other effect than to indicate that
extradition would be requested and that its issuance did not in any way
involve a consideration of the legality or the propriety of the
extradition—matters to be determined when the extradition record was
finally before the department. The department at that time also informed
you that the certificate was sent with the distinct undertsanding that
it should be without prejudice to the right of this Government hereafter
to determine the ultimate action to be taken in this case.
The question of the issuance of the Federal warrant of surrender will be
considered when the case is formally and properly before the department
for final determination.
memorandum—extradition of porter
charlton.
Department of State,
Washington, December 9,
1910.
On June 24, Porter Charlton was arrested on complaint of the Italian
vice consul on a charge of murder committed in Italy. Formal demand
for the extradition of Charlton under and pursuant to the terms of
the extradition treaty between the United States and Italy was made
upon this Government by the Government of Italy under date of July
28 (received by the department July 30), that is, within the 40-day
period provided for this purpose in the treaty. Later Charlton was
taken before an extradition magistrate who, after a formal hearing
as provided for by treaty and statute, committed him on October 14
for surrender to the Italian Government.
The committing magistrate’s record as transmitted to the department
discloses no material informality in the proceedings, and a case
calling for the surrender of the accused under the treaty terms is
made out, unless such surrender is to be defeated by objections
raised by counsel for the accused. These objections are in their
order:
First. That the Secretary of State should decline to
surrender the accused and the President should direct his
discharge because the record of the committing magistrate as
transmitted to the department does not contain the formal
demand of the Italian Government for the surrender of the
fugitive, or show that such demand was made within the
treaty period; and the department may not, in passing upon
the matter of surrender, take note of the fact that the
demand has been made within the proper time, and that it is
in the department’s files forming a part of the department’s
record of the case, since the department may not in passing
upon the question take into consideration any evidence not
before the committing magistrate.
The formal demand or “requisition” of one Government upon another for
the surrender of a fugitive is of a political character. It is made
pursuant to and in accordance with treaty provisions, through the
regular diplomatic channels, for the performance of the obligations
imposed by a treaty. This “requisition” is addressed to the
political branch of the one Government by the political branch of
the other Government and is merely notice that the treaty provisions
are to be and are thereby invoked in the matter of the surrender of
fugitives. It would appear, therefore, that the making of a
“requisition” is a matter which primarily concerns the political
branch of the Government,
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and that all questions regarding the propriety or sufficiency of the
form in which it is made are for the determination of that
branch.
The statutes of the United States recognize this by conferring upon
the committing magistrate jurisdiction to determine whether there
are probable grounds to believe that the accused has committed a
crime—such grounds as would justify the placing of the accused on
trial if the crime had been committed in this country; whether the
crime charged constitutes an extraditable offense; and whether the
accused is within the purview of the treaty; but they leave the
question of sufficiency of the political or diplomatic measures of
the proceeding for the determination of the diplomatic branch of the
Government.
It is therefore concluded that the first objection raised by counsel
for the accused in this case is without merit and of no effect in
defeating extradition.
The second objection is that Charlton should not be surrendered
because, under the treaty providing that each Government shall
surrender persons fugitive from the one and found in the other,
Italy refused to surrender to the United States for trial and
punishment Italian subjects who were fugitives from the justice
of the United States, therefore the United States is relieved
from any obligation to surrender its citizens fugitives from
Italy; and since the Executive may not surrender fugitives to
another Government, except pursuant to some positive treaty
obligation or congressional act, and there being no such
obligation here existing, there is no authority in the Executive
to surrender Charlton and he must therefore be discharged.
This contention, like the first, is without merit in this case.
The fundamental fallacy of this contention is that an extradition
treaty must be wholly reciprocal. This is not true. Our own treaties
will show, for example, that upon occasion we have stipulated for
assistance from foreign Governments in the matter of the
apprehension of criminals fugitive from our justice in other
countries where we have not been able to grant and do not grant or
extend such assistance in a reciprocal case. Great Britain has
concluded a number of treaties in which it is expressly stipulated
that Great Britain shall surrender its subjects to the other
contracting party, although such party refuses to surrender its
subjects in reciprocal cases to Great Britain. The report of the
British commissioner on extradition made in 1878 recommends that a
sound public policy does not require that British subjects should be
exempt from extradition where the demanding Government refuses to
reciprocate as to its own citizens.
No reason, constitutional or otherwise, is perceived why we should be
constrained to take the other view.
The course followed by Italy in the present case indicates, as,
indeed, is set forth in the diplomatic correspondence, that the
Italian Government regards the United States and Italian treaty as
being of this class—that is, nonreciprocal as to citizens or
subjects of the respective countries—and that while Italy can not
surrender to the United States for trial and punishment her subjects
fugitive from the justice of the United States, still the United
States is, pursuant to its own interpretation, under obligation to
surrender to Italy for trial and punishment citizens of the United
States fugitive from the justice of Italy.
The meaning of this treaty with reference to the obligation resting
upon the Government of Italy to return to the United States Italian
subjects fugitive from the justice of this country has been under
discussion for a great many years, the Italian Government at all
times
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during such
discussion insisting that since under Italian law it could punish
Italians committing crimes in foreign countries and was by that law
prohibited from surrendering Italians to such foreign countries for
trial and punishment, it rested under no obligation under the treaty
to surrender Italian subjects to the United States, and the United
States contending that the surrender of citizens was imposed upon
both countries by the treaty. After discussing the matter for a
number of years the United States has so far acquiesced in the
Italian construction as generally to cease to make requisition upon
the Italian Government for the return of Italian citizens to this
country for trial and punishment, though never formally announcing
its acquiescence in the Italian construction, and on the contrary
always insisting, when the question has been raised, upon the
soundness of its own construction.
The question is now for the first time presented as to whether or not
the United States is under obligation under the treaty to surrender
to Italy for trial and punishment citizens of the United States
fugitive from the justice of Italy, notwithstanding the
interpretation placed upon the treaty by Italy with reference to
Italian subjects. In this connection it should be observed that the
United States, although, as stated above, consistently contending
that the Italian interpretation was not the proper one, has not
treated the Italian practice as a breach of the treaty obligation
necessarily requiring abrogation, has not abrogated the treaty or
taken any step looking thereto, and has, on the contrary, constantly
regarded the treaty as in full force and effect and has answered the
obligations imposed thereby and has invoked the rights therein
granted. It should, moreover, be observed that even though the
action of the Italian Government be regarded as a breach of the
treaty, the treaty is binding until abrogated, and therefore, the
treaty not having been abrogated, its provisions are operative
against us.
The question would, therefore, appear to reduce itself to one of
interpretation of the meaning of the treaty, the Government of the
United States being now for the first time called upon to declare
whether it regards the treaty as obliging it to surrender its
citizens to Italy, notwithstanding Italy has not and insists it can
not surrender its citizens to us. It should be observed, in the
first place, that we have always insisted not only with reference to
the Italian extradition treaty, but with reference to the other
extradition treaties similarly phrased that the word “persons”
includes citizens. We are therefore committed to that
interpretation. The fact that we have for reasons already given
ceased generally to make requisition upon the Government of Italy
for the surrender of Italian subjects under the treaty would not
require of necessity that we should, as a matter of logic or law,
regard ourselves as free from the obligation of surrendering our
citizens, we laboring under no such legal inhibition regarding
surrender as operates against the Government of Italy. Therefore,
since extradition treaties need not be reciprocal, even in the
matter of the surrendering of citizens, it would seem entirely sound
to consider ourselves as bound to surrender our citizens to Italy,
even though Italy should not, by reason of the provisions of her
municipal law, be able to surrender its citizens to us.
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In determining the meaning which, as a matter of public morals, ought
to be given to an extradition treaty, it must be remembered that
under our Constitution and laws it is not possible to punish
criminals in this country for crimes committed against the peace and
dignity of foreign Governments, and that, therefore, unless we
surrender to such foreign Governments, for trial and punishment
therein, our citizens committing crimes within the jurisdiction of
such Governments, such citizens will go wholly unwhipped by justice.
Extradition treaties are negotiated and put into force and effect in
order that persons committing crimes in one country and fleeing to
another may be brought to justice, and to interpret an extradition
treaty, which under our Constitution is a supreme law of the land,
in a way that does violence to its obvious meaning and our
consistent contention as to its meaning, so as to produce the
precise situation which the treaty was designed to meet and correct,
can not be justified.
For these reasons it is decided that the Government of the United
States should surrender to the Government of Italy Porter Charlton,
charged with the crime of murder, which crime he has confessed.
Counsel for the prisoner also contends that Charlton should not now
be surrendered because the committing magistrate refused to receive
testimony tending to prove his insanity. If the magistrate erred in
thus refusing such testimony the prisoner has his remedy in the
courts and it is not for the department, at this state of the
proceedings, to pass upon this question.
