File No. 10334.
The Secretary of State to the German Ambassador.
Washington, December 28, 1907.
Excellency: I have the honor to acknowledge the receipt of your note of the 7th instant requesting the decision of the department as to whether Georg Bartholomaus, extradited from the United States to Germany for the crime of forgery, and now serving a term of imprisonment therefor, can be prosecuted for an offense committed prior to extradition and not set forth in the requisition for his extradition, [Page 519] provided no action is taken until a month after his release from the present term of imprisonment.
In reply I have the honor to say that where our treaties of extradition with foreign countries contain no express limitation of the right of the demanding country to try a person only for the crime for which he was extradited, it is the practice of this department to imply such a limitation on the ground that such is within the manifest scope and object of these treaties, notwithstanding there is no express stipulation to this effect. So far as extradition from this country is concerned, this attitude is required by reason of the ruling of the Supreme Court of the United States to the effect that the Revised Statutes of the United States relating to extradition clearly manifest the intention that the fugitive shall be tried for that offense only with which he is charged in the extradition proceedings and for which he was delivered up; and that if not tried for that crime he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime which he committed before his extradition. The same reasonable time would also have to be allowed after an acquittal of the crime charged in the extradition proceedings, or, as it would appear, after the expiration of the term of confinement following a conviction for such a crime, before an arrest could be made for the commission of a crime not charged in the extradition proceedings and committed prior thereto.
The department is therefore in accord with the embassy upon the general principle that trial and acquittal of, or trial and conviction for an extradition offense, does not clothe the fugitive with permanent immunity from prosecution for other offenses committed prior to extradition, but that the fugitive may be rearrested after he has been given a reasonable time to depart from the jurisdiction.
Such being the principle in the United States, this department sees no reason to object to its application in Germany.
Since in the United States the question “What is a reasonable time?” is one for the determination of the courts, and not for the executive, it is impossible for the department, in the absence of treaty, to specify thirty days as the proper period. It is true that some of the recent extradition treaties between the United States and foreign countries fix the time at thirty days, but others merely provide for the lapse of a “reasonable time” before the rearrest can be secured. The question would be determined with reference to the facts of each particular case, and a duration of time which might be entirely reasonable in one case might not be reasonable in another.
Accept, etc.,