Mr. Gresham to Baron Saurma.

No. 18.]

Excellency: I have the honor to acknowledge the receipt of your note of the 10th of January last in relation to the case of Jacob David, a citizen of the United States, who was extradited from Germany to the United States in January, 1893, on charges of forgery and of fraudulent use of forged papers.

In order to present this case in its proper light, I will briefly refer to the prior correspondence. On the 25th of January, 1894, your excellency, acting under the instructions of your Government, addressed to me a note in which you drew attention to certain statements in the American press in which it was represented that David, apparently after his extradition, was indicted for the offenses of larceny, forgery, and embezzlement—all of which were embraced in one indictment, and that when arraigned on this indictment he pleaded guilty and was sentenced on the charge of larceny, the other charges being dismissed or abandoned. It appearing, according to these representations, that David had been arraigned and sentenced on a charge for which his extradition was not, and under the treaty between the United States and Germany could not have been demanded, you requested me to inform you whether he had “actually, since his extradition, been criminally prosecuted for any acts” other than those for which he was surrendered.

Inquiry of the governor of Illinois, against the laws of which State David’s offense was committed, elicited the fact that in October, 1892, he was indicted for forging a bond and also a transfer of stock. He had previously been indicted for larceny. When, more than a year afterwards, he was brought back on the charges involving forgery, he offered to plead guilty to the charge of larceny if the other charges against him should be dismissed. This offer, which seems to have been dictated solely by motives of self interest on the part of David, was accepted by the State, and after pleading guilty to the charge of larceny he was sentenced to a term of imprisonment, which expired about five months ago. These facts were duly communicated to your excellency. It appears from them that David was not prosecuted after his surrender on the charge of larceny, but that, having previously been charged with that offense, the indictment for which was still pending, he sought to plead guilty to it in order to avoid a prosecution for the offenses for which he was extradited. The voluntary character of the proceeding on the part of David is shown not only by these circumstances, but also by the fact that it has not been suggested that he [Page 493] fancied himself to have any ground for complaint. Indeed, it may well be assumed that he owes his liberty to-day to the lenient compliance of the authorities of Illinois with his wishes.

The circumstance that in your note of the 10th of January you refer to “the extension of the criminal prosecution of Jacob David to other acts than that for which the extradition was granted,” and protest in behalf of your Government “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,” has led the Department to doubt whether the facts in the case, as they are herein again set forth, have been correctly apprehended by the Imperial Government. It certainly appears that there was no extension of the prosecution of David, and that no new proceedings were instituted against him after his extradition. But whatever may be the understanding of the Imperial Government as to the facts in the case, there are certain propositions of law laid down in the note of your excellency from which this Government is compelled to dissent. It is said to be the opinion of the Imperial Government that rights can not in general be derived by an extradited criminal from the treaty under which his extradition is granted, since extradition treaties “rather create rights only between the Governments concerned.” This Department was not aware that such was the law in Germany. It certainly is not the law in the United States. It is true that at one time various courts in this country held the opinion now expressed by your excellency in behalf of the Imperial Government, and, acting upon that opinion, they maintained that an extradited person could, in spite of his protest, be prosecuted for offenses other than that for which he was delivered up, unless the surrendering Government formally objected. But since the decision of the Supreme Court of the United States in the case of Rauscher it has been the settled law of the land that the exemption from such prosecution is so far a personal right that the extradited person may demand and obtain its judicial enforcement.

This Department is not unaware of the fact that it is often loosely said that the exemption from trial for offenses other than that for which extradition was granted is a right belonging to the surrendering Government rather than the person surrendered. When properly interpreted, the meaning of this statement appears to be only that if the surrendering Government waives the right the individual can not set it up. To permit him to do so would be to concede what no State will now admit, viz, that a fugitive from justice can claim, as against the country of refuge, a right of asylum. As the Government of the country of refuge may, in accordance with its own laws and views of policy, deliver up fugitives from justice against their will, so, after their surrender, it may waive the limitations which it may have seen fit to impose in regard to their trial.

But, while the fugitive does not acquire any right as against the surrendering Government by reason of his extradition, it seems equally plain that the surrendering Government does not, by reason of the same transaction, acquire any right as against the person surrendered. For this reason the Department is unable to regard as sound the proposition advanced in the note of your excellency that “the declarations of the criminal can not be taken into consideration.”

It is not difficult to show that this proposition, when followed to its logical consequences, carries us beyond any rule ever laid down on the subject of limitations as to trial. The case, with reference to which extradition treaties are made, is that of the recovery and prosecution [Page 494] of an offender against his will, and it is with reference to such a case that the rules of extradition are usually discussed. The object of the whole system is to punish crime, not to protect it; to compel offenders to submit to prosecution, not to prevent them from doing so.

With the idea of compulsory prosecution in view, it is laid down as a general rule, not merely that a person delivered up shall not be tried for an offense other than that for which he was surrendered, but that he shall not be so tried until he shall have had an opportunity to return to the jurisdiction of the surrendering Government. This is the construction given by writers to the limitation as to trial, whether the limitation be expressed in terms thus comprehensive or in terms more brief.

It needs no argument to show that this rule necessarily presupposes the right and the power of the accused voluntarily to waive his immunity from trial. While it assumes that he is averse to trial, it treats his omission to leave the jurisdiction as an implied waiver of his exemption. It is obvious that such a waiver could not be implied from his conduct if he had not the power to make it by an express declaration. The theory advanced by the Imperial Government would place the accused under a positive disability and convert a rule made for his protection into a means of oppression. It would deprive him of his free volition by denying him, after his surrender, the freedom of action which he enjoyed before, when it was within his power voluntarily to deliver himself up to be tried for any and every offense with which he was charged.

Of the possible practical consequences of such a theory the case under consideration affords an excellent illustration. By the acceptance of his offer to plead guilty to the charge of larceny, David acquired immunity from punishment on graver charges, and soon acquired his liberty. Had he been deprived of his freedom of action, he might have been required not only to undergo trial and probably longer imprisonment on the charges for which he was surrendered, but afterwards to become a fugitive from justice again in order to avoid prosecution for larceny. The proposition he made, and of which he secured an acceptance, was manifestly for his advantage.

Such being the views of this Government, I do not see any ground for attempting to bring to account the officials of the State of Illinois who participated in the transaction to which David was voluntarily a party. Nor can this Government undertake to guarantee in each particular case that a fugitive surrendered for one offense will not voluntarily submit to be tried for another, and that the courts, should he so submit, will refuse to try or punish him.

Accept, etc.,

W. Q. Gresham.