Mr. Bayard to Mr. Romero.

Sir: I have the honor to acknowledge the receipt of your note of the 17th ultimo, in which you communicate the views of Mr. Mariscal in respect to the execution of the extradition treaty between the United States and Mexico. You state that the Mexican Government can “have no objections to the President of the United States consulting the judicial authorities,” if such course is required by our laws; but that your [Page 621] Government “can not admit that, in order to secure the extradition of any person, it is obliged to do anything more than what is stipulated in article I of the treaty of December 11, 1861, that is to say, anything more than to present its requisition, through its diplomatic agent, in ordinary cases, and through the frontier authorities in cases which have occurred on the frontier.” You further state that your Government “thinks that the laws of the United States are not binding upon Mexico, for the same reason that any laws that Mexico might enact concerning extradition would not be binding upon this Government;” that “although any nation has a right to make the surrender of criminals conditional, other countries are obliged to submit to the conditions thus established only when they have concluded no treaty,” but that “when a treaty exists the demanding country is obliged to submit to no conditions save those to which it has agreed.”

The Department finds itself compelled to dissent from the views entertained by your Government. Since 1848 the United States has had among its statutes laws for the execution of its treaties of extradition. These laws are operative under all such treaties alike, and it has always been understood that when, as in the case of the Mexican treaty, provision was made that extradition should be granted only when the fact of the commission of the crime should be so established as that the laws of the country in which the person charged should be found would justify his apprehension and commitment for trial if the crime had been there committed, an express recognition was intended of the methods of ascertaining the question of criminality in that country. The provision in the Mexican treaty is not exceptional, but may, it is believed, be found in all our extradition treaties. Nor is the United States peculiar in having laws for the execution of such treaties. While some treaties are regarded as self-executing, many require legislation for their execution. It would be superfluous to cite examples to show that extradition treaties have generally been regarded as belonging to the latter category.

The application by a foreign Government or its agents to the judicial branch for the arrest and detention of a fugitive is not regarded by the United States as onerous, nor as, in any sense, affixing a condition to the execution of its treaties. Such application is constantly made under the direction of this Department to the judicial tribunal of other countries, and is found to be a convenient method of procedure. And it is thought that, under the statutes of the United States, as construed by the Supreme Court in case of Benson, there exists an efficient and liberal method of initiating and carrying on the preliminary judicial proceedings, which, under our treaties and the laws adopted for their execution, form the basis of the decision of the Executive upon the question of surrender.

Accept, etc.,

T. F. Bayard.