Baron Saurma to Mr. Gresham .
Washington , January 10, 1895 .
Mr. Secretary of State: In accordance with the instructions of the Imperial Government, I have the honor to state, in reply to your excellency’s esteemed note of October 9, 1894, concerning the extradition to the United States authorities of Jacob David who was arrested in Germany, as follows:
In the above-mentioned esteemed note it is stated that it was not the intention of the authorities of the State of Illinois to deprive David of the rights accruing to him under the extradition treaty of June 16, 1852; that, on the contrary, the prisoner himself, by confessing himself guilty of theft, on condition that the charge of forgery should be dropped, renounced the impunity which under the treaty he enjoyed as to the theft.
The Imperial Government regrets that it can not see in this any entirely satisfactory reply to the representations which were made in the note of January 25, 1894, against the extension of the criminal prosecution of Jacob David to other acts than that for which the extradition was granted.
In the opinion of the Imperial Government rights can not in general be derived for an extradited criminal out of the treaty on the ground of which his extradition has taken place. Extradition treaties rather create rights only between the Governments concerned. In the present case the extradition of David was not asked on the ground of theft, nor could it have been granted for that criminal act, as the treaty does not recognize theft as a ground of extradition. It does not seem to be consistent with the wording of the treaty and the treaty rights of Germany that the American authorities should consider themselves entitled to extend the criminal prosecution of an extradited person, without regard to the conditions of the extradition, after they have obtained from the criminal a renunciation of the rights which he is thought to possess under the treaty. The declarations of the criminal can not be taken into consideration in connection with the rights which Germany has acquired in consequence of an extradition executed in accordance with the terms of the extradition treaty, nor can they prejudice those rights. The Imperial Government insists that in order to extend the prosecution of an extradited person to acts which were not included in the request for extradition, unless the extradition treaty contains a provision to the contrary, the express consent of the extraditing Government is required, and thinks itself compelled to enter a protest on the ground that, in the present case, proceedings have been instituted against the extradited person without its consent for acts for which the extradition was not granted.
The sentence passed upon David has, according to your excellency’s communication, been already carried out. In view of this the Imperial Government cherishes the hope that the United States Government will exert all its legal powers to bring to account the officials who have been guilty of a violation of the treaty rights of Germany. I would respectfully ask for your kind information as to the measures which may be adopted to this end.
Moreover, the Imperial Government could in future grant an extradition to the United States of America only when it appears certain [Page 492] that the person to be extradited will not, without the consent of the Imperial Government, be called to account and punished in America for other facts and acts than those for which the extradition shall be asked and granted. Either a full guaranty of this would have to be given by the United States Government in every individual case or this point would have to be settled once for all in a new extradition treaty.
With the hope that you will kindly inform me of the views of your excellency and the United States Government as to the opinions expressed by the Imperial Government, I avail myself, etc.,