No. 120.
Mr. Dichman to Mr. Evarts.

No. 17.]

Sir: Before leaving the United States my attention was called, at the Department, to the subject of an extradition treaty with this country. The inclosed copies of correspondence will show to the Department what I have done in this matter, upon which I desire to make the following observations:

The Department will learn from the inclosed papers, that in my intercourse with the Colombian Government I have treated the general subject of extradition as entirely separate from the right to bring criminals across the Isthmus of Panama. The latter is a matter of importance to the Government of the United States, and, I think, ought to be settled in the direction indicated in my letter to the secretary of foreign relations of Colombia. In my conversations with him on this subject, I have endeavored to impress him fully with the following points, viz:

1.
That extradition of criminals is no longer a measure of exceptional gravity, but that as nations have extended and multiplied their relations they have realized the necessity of mutually aiding each other in the repression of offenses against the laws of universal morality and justice.
2.
That the transit across a nation’s territory cannot be considered in the light of extradition, on the ground that a criminal brought to the borders of a State under compulsion, for the purpose of transit, cannot be compared to one who voluntarily seeks an asylum there under the protection of its laws, and for the surrender of whom the power of the State has to be invoked.
3.
That aside from the general principle stated in the aforesaid No. 2 (and to avoid difficulties arising under the constitution of Colombia), the right of transit guaranteed to the Government of the United States by the treaty of 1846, clearly embraces the transfer or transit of criminals by the Government of the United States.
4.
That the right of transit being guaranteed to the Government of the United States by treaty prior to the adoption of the constitution of the United States of Colombia, no possible benefit of its “bill of rights” can inure to a criminal to be taken across the Isthmus of Panama by the Government of the United States.

The main issue between the secretary of foreign relations and myself is as to what papers or proofs, in the case of a criminal brought by the Government of the United States to the Isthmus of Panama, for transit, are to be exhibted to the Government of Panama as the constitutional agent of the Government of the United States of Colombia, it being inadmissable, in my opinion, for the United States to consent to the exercise of any discretion whatever on the part of the Government of Panama, while the secretary of foreign relations contends, as shown in his conditions 2 and 3, for a discretion to refuse the transit.

As to the general subject of an extradition treaty with this country, I do not deem it advisable to negotiate one at present, but will keep the question before the Colombian Government, and continue to discuss the same informally, in order that a treaty may be negotiated at any time the Department may deem advisable. I do not believe that the Colombian Government, if an extradition treaty were negotiated and ratified, would be able to carry it out at all times. The want of a federal judiciary and federal officers in the different States, and the necessity of relying upon the State governments to execute an international agreement, produces complications wherever the State and federal governments are in the hands of parties opposed to each other. A demand might be made upon the Colombian Government, under the terms of a treaty, for the surrender of a criminal, with which it could not comply even with the greatest disposition on the part of the government to fulfil its agreement, thus giving rise to misunderstandings between the two governments, which had best be avoided.

* * * * * * *

I am, &c.,

ERNEST DICHMAN.
[Inclosure 1 in No. 17.—Translation.]

Sir: In conformity with the understanding in our interview of to-day, I have the honor to address you, with the object of informing you that the Colombian Government does not deem it inconvenient to execute with that of the United States of America an extradition treaty, which will be in conformity with the principles generally admitted by the waiters (publicists) upon this matter, and adopted usually in conventions of this nature.

Respecting the transport across the Isthmus of Panama of individuals, the extradition of which has been obtained by the United States, from other countries, in accordance with the respective treaties, the Colombian Government will consent thereto under the following conditions: [Page 253]

1.
That the crime shall be among those mentioned in the extradition treaty to be executed between the United States of America and Colombia.
2.
That there be presented to the government of the State of Panama the documents on which the extradition is based.
3.
That said government may refuse the transit when in its opinion the extradition is not justified by the documents which have been presented.
4.
That the custody of the criminals will be by the armed forces of the nation or of the State of Panama.

I am the honorable minister’s, with all consideration, very attentive and obedient servant,

PABLO AROSEMENA.

Hon. Ernest Dichman,
Minister Resident of the United States of America.

[Inclosure 2 in No. 17.]

Sir: It affords me pleasure to acknowledge the receipt of the Hon. Pablo Arosemena’s note of yesterday, on the subject of the extradition of criminals from the United States of Colombia, and the conditions under which the Colombian Government will permit the transit of criminals across the Isthmus of Panama.

The Government of the United States of America will undoubtedly be gratified to learn of the readiness with which the Government of the United States of Colombia is willing to enter upon this negotiation, and I shall ask for instructions concerning the same.

Before, however, submitting to the government at Washington the conditions under which the Colombian Government is willing to permit the transit of criminals extradited by the United States across the Isthmus of Panama; I would respectfully invite the attention of the honorable secretary in charge of the foreign relations, to the following propositions, which are made informally, in order that in the discussion thereof the principles underlying this question maybe fully developed, and a result reached which, while acknowledging and keeping within the rights of sovereignty of the United States of Colombia, will give to my government a safe and practical method of accomplishing the object in question.

1st.
The question of transporting across the Isthmus of Panama criminals of the United States of America extradited from foreign countries, or taken from one port of the United States to another, is simply a question of the regulation of the right of transit provided by article 35 of the treaty of 1846, and in the discussion of this question the general principles applicable to extradition treaties do not enter.
2d.
The transit of such criminals from countries other than the United States of America, shall be permitted upon the exhibition to the government of the State of Panama, as the agent of the Government of the United States of Colombia, of the warrant of extradition or other document on which such criminals have been surrendered.
3d.
The transit of such criminals from one part of the United States to another shall be permitted upon the exhibition of the warrant of arrest, or a certified copy of the indictment under which such criminals are held, to the government of the State of Panama, as the agent of the government of the United States of Colombia.
4th.
Upon the application of the consul of the United States of America to the government of the State of Panama, as the agent of the Government of the United States of Colombia, the officers in charge of such criminals may be appointed officers of the United States of Colombia for the purpose of conducting such criminals across the Isthmus of Panama; otherwise the custody of such criminals will be by the officers of the United States of Colombia, who will then be responsible for their safekeeping.

A careful reading of paragraph 1 of article 35 of the treaty of 1846 leads me to the conclusion expressed in the first of the above propositions. The right of transit is not only guaranteed to the citizens of the United States and their merchandise, but also to the government, and the government cannot enjoy the right of way or transit across the Isthmus of Panama, except in the exercise of one of its functions, and the function with which we are now concerned, is the one of bringing back criminals to the plaee where the crime was committed in order that they shall be tried and, if found guilty, punished. This is a duty for the protection of society, in the prompt discharge of which the United States of Colombia, in fact the whole world, are equally interested with the Government of the United States of America, and for the better performance of which it might some time be desirable for the Government of the United States of America to make use of the right of transit guaranteed to it by article 35 of the treaty of 1846.

[Page 254]

If the honorable secretary should arrive at the same conclusions with myself, then the only remaining question would be as to how this right of transit is to be exercised. For my views on this branch of the question, I beg leave to call the honorable secretary’s attention to my propositions 2, 3, and 4. By the acceptance of 2 and 3 the rights of persons would be sufficiently protected, and No. 4 would guard against any infringement of the sovereignty of the United States of Colombia. On this point I am satisfied that the honorable secretary agrees with me, that it is not to be supposed that there should be any desire on the part of the Government of the United States of America, even for the purpose of exercising a function of government by which the good order of society is maintained, to infringe in the slightest degree upon the rights of sovereignty which the United States guarantees in the same article of the treaty of 1846, which secures and guarantees to the United States and the Government thereof the right to transit.

In the interviews which I have had with the honorable secretary on this subject, I have become convinced that he takes a statesmanlike view of the question, endeavoring to reconcile his ideas of duty to constitutional law with the equally high duty to humanity and social order.

It is with this spirit that the above propositions are submitted for his consideration, and I feel satisfied that in further personal conferences on this subject, an understanding will be arrived at which I can recommend to my government as the basis for a treaty, and which will show to the world that the United States of Colombia is always ready to contribute its share in the family of nations towards the good order and regulation of society.

I avail myself of this occasion to renew to the honorable secretary the assurances of my high consideration.

ERNEST DICHMAN.