Baron Saurma to Mr. Gresham.

Mr. Secretary of State: In reply to your excellency’s note of the 26th of February last, relative to the extradition of Jacob David to the United States authorities, I have the honor, in obedience to instructions received, to submit the following remarks to your excellency:

The Imperial Government has taken cognizance, with great interest, of the statements made in the aforesaid note, and is able to agree with some of them entirely.

[Page 495]

As is therein remarked, with reference to the Rauscher case, a criminal who has been surrendered to the German authorities may, in the opinion of the Imperial Government, when arraigned before the German courts, appeal to the treaty under which his extradition has been granted and demand that its provisions be executed. This is the case at least when the treaty in question has been ratified by the proper legislative bodies and has been made public in the manner required for laws.

The treaty then is, at the same time, a law, and the accused may demand, as he may in the case of any law, that it be executed, and may oppose its violation by the same means by which he may oppose the violation of other laws. To that extent it is true that an extradited person may derive rights, as regards the country to which the extradition has been granted, from the treaty as from a law of the land. That, however, is a domestic affair of this country, and was consequently not referred to by the Imperial Government in the first statement which it made to your excellency in the note of this embassy of January 10, 1895. For, between the two Governments, the international side only comes into question, and, while the Imperial Government claims that an extradited criminal can derive no rights from a treaty between two States, as being an international instrument, it thinks that the United States Government will not object to this. The two ways of considering the question do not exclude one another. A treaty of extradition has a double character, both as a law of the land and as a standard of international law. The first side of the case has been thoroughly discussed in the note of the Honorable Mr. Gresham, Secretary of State. The second side has, however, in the opinion of the Imperial Government, not received sufficient attention. For, while an extradited person may be authorized to renounce the rights which he may himself derive from the treaty as a law, the rights are not thereby affected which the extraditing State has acquired—as regards the other State—from the international instrument of extradition. Those rights are within the domain of international law and are entirely independent of the will of the extradited person.

Your excellency’s note of the 26th of February last seeks, it is true, to show that those rights are, to a certain extent, independent of the will of the extradited person, inasmuch as it states that extradition treaties are concluded for the recovery and prosecution of an offender against his will, that the limitations to which the prosecution is subjected by the treaty form a rule made for his (the offender’s) protection, and that he would be deprived of his free volition if the freedom of action were denied him after his extradition which he enjoyed before. The Imperial Government, however, does not think that it can fully share all these views.

Although it may usually be the case that an offender is extradited against his will, this by no means belongs to the conception of extradition. It not infrequently happens that a fugitive criminal declares that he is willing to be surrendered, and it is quite conceivable that such a person should consent before, as David did after, his extradition, to be prosecuted for acts other than those provided for in the treaty.

Would the United States Government suppose that such a declaration was deserving of consideration, and that, for instance, a criminal who should be surrendered by the United States to Germany would, on giving his consent thereto, be sentenced by the German courts for a political or military offense, or for an act which, according to American ideas of law, was not even a criminal offense? The Imperial Government [Page 496] would not suppose such a thing if the case were reversed. It holds the opinion, on the contrary, that when an offender does not appear before the courts whose duty it is to try him, and thus furnishes ground to one State to ask legal aid of another, his will, as regards the arrangement to be made by the two States concerning his extradition, can no longer be entitled to consideration. As no American officer whose duty it is to take charge of a criminal who has been surrendered by Germany would set such criminal at liberty on his declaring that he would voluntarily appear before the proper American court, just so the Imperial Government can attach no significance to such a person’s declaration that he thus submits to prosecution, as if he had appeared voluntarily; it can do so neither when such declaration is made after extradition nor when it is made before. If an offender has once failed to appear voluntarily, he can not afterwards pretend that he has appeared. An enforced return then takes the place of a voluntary appearance, application therefor being made by one State and granted by another, and, in the view of the Imperial Government, such enforced return is to be considered as an international act, from the point of view of public law. To what extent such legal aid is to be rendered depends upon the agreement that has been made, once for all, by means of a treaty of extradition or for that particular case.

The main object to be kept in view in such cases is, as is pertinently remarked in your excellency’s note of February 26, to punish crime, not to protect it. When the State to which application is made grants the application, but only on certain conditions, this is to be explained by the fact that, while it is perfectly willing to lend the foreign State the required legal aid, it must, to some extent, consider its own sovereignty and its own interest. Thus is explained the fact that extradition is not granted for acts that are not punishable in the State to which application is made. The latter State, in the opinion of the Imperial Government, will not be likely to aid in the punishment in another State of a person whom it does not itself consider a criminal, and if it requires that the extradited person shall not subsequently be held responsible for such acts, it does so for the purpose of upholding its sovereignty and its views of what is right. It seems evident that this State right is dependent solely upon its (the extraditing State’s) will, and that it can be renounced by it only, and not by the person extradited. That person may secure immunity from punishment under the protection of such reservations, but that is only a consequence, not the object of this or of any similar reservation made in connection with the extradition. If, for instance, no provision is made in the treaty in force between Germany and the United States for extradition for embezzlement and theft, the lack of such provision is evidently not to be ascribed to the fact that one of the two parties thinks that a man who has been guilty of one of these offenses deserves to be protected from the other State, but to the fact that when the treaty was concluded these offenses were not considered by the two parties as being of sufficient importance to warrant them in assuming the international obligation to extradite and the burden upon their own sovereignty which is therein involved.

In their own interest the treaty-making parties have thus restricted their obligation to grant extradition, and if a criminal derives any advantage therefrom this is unfortunately not to be avoided while the existing treaty is in force, and must be accepted as an undesirable consequence of that restriction. It would, however, in the opinion of the Imperial Government, be wrong, and would not appear to be in harmony with the principle upheld by the United States Government, viz, that [Page 497] the object of extradition is to punish crime, not to protect it, if the protection of the criminal were to be regarded as the real object of the restrictions made in connection with extradition, and if the renunciation thereof were to be made dependent upon his will. The State to which application for extradition is made derives from the international act of extradition rights which belong to international law, and which can be renounced by none but the State alone.

The Imperial Government therefore thinks, to its regret, that it must maintain its protest against the action taken in the United States in the case of David. It has considered the procedure in that case exactly as it is rehearsed in your excellency’s note of the 26th ultimo [meaning February 26]. In that rehearsal it finds confirmation of the fact that David was sentenced in the United States for an act for which his extradition could not have been demanded according to the treaty, and for which he should not have been punished without the consent of the Imperial Government, so long as he was in the power of the American authorities in eon sequence of the extradition.

As the United States Government declares that it can not undertake to guarantee, in each particular case, that no repetition of such proceedings shall occur, the only thing that remains to be done, in the opinion of the Imperial Government, is to settle the point by means of a new treaty of extradition, so that such treaty, as a law of the land, may furnish a proper criterion to the American courts.

Begging to be favored with a reply on this subject, I avail, etc.,