the crime of bribery to the list of crimes or offenses on account of which extradition may take place between the two countries, was concluded and signed by their respective Plenipotentiaries at the City of Mexico, on the twenty-fifth day of June, one thousand nine hundred and two, the original of which Supplementary Convention, being in the English and Spanish languages, is word for word as follows: The United States of America and the United States of Mexico being desirous to add the crime of bribery to the list of crimes or offenses on account of which extradition may be granted under the Convention concluded between the two countries on the 22nd day of February, 1899, with a view to the better administration of justice and the prevention of crime in their respective territories and jurisdictions, have resolved to conclude a Supplementary Convention for this purpose and have appointed as their Plenipotentiaries, to-wit: The President of the United States of America, Powell Clayton, Ambassador Extraordinary and Plenipotentiary of said United States at Mexico, and The President of the United States of Mexico, Don Ignacio Mariscal, Secretary of Foreign Relations. Who, after having communicated to each other their respective full powers, which were found to be in due and proper form, have agreed to and concluded the following ARTICLE. The following crime is added to the list of crimes or offenses numbered 1 to 20 in the second Article of the said Convention of February 22, 1899, on account of which extradition may be granted, that is to say: Bribery, defined to be the giving, offering or receiving of a reward to influence one in the discharge of a legal duty. The present Convention shall be ratified and the ratifications shall be exchanged at the City of Mexico as soon as possible. It shall come into force ten days after its publication in conformity with the laws of the High Contracting Parties, and it shall continue and terminate in the same manner as the said Convention of February 22, 1899. In testimony whereof the respective Plenipotentiaries have signed the present Convention in duplicate and have hereunto affixed their seals. Done in duplicate at the City of Mexico, in the English and Spanish languages, this twenty-fifth day of June one thousand nine hundred and two. [SEAL.] SEAL. POWELL CLAYTON And whereas the said Supplementary Convention has been duly ratified on both parts, and the ratifications of the two Governments were exchanged in the City of Mexico on the twenty-eighth day of March, one thousand nine hundred and three; Now, therefore, be it known that I, Theodore Roosevelt, President of the United States of America, have caused the said Supplementary Convention to be made public, to the end that the same and every clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. FR 1903-43 In testimony whereof, I have hereunto set my hand and caused the Seal of the United States of America to be affixed. Done at the City of Washington, this third day of April, in the year of our Lord one thousand nine hundred and three, and of the Independence of the United States of America the one hundred and twenty-seventh. (Mr. Hay instructs Mr. Clayton to ascertain whether the Mexican Government will entertain a request for the extradition of Charles Kratz, charged with bribery in Missouri, as an act of comity upon promise of reciprocity by the United States. Mr. Hay states that he understands the position of the Mexican Government to be that under the Mexican constitution the treaty is not retroactive, but that by the Mexican law of 1897 extradition can be granted outside of treaty upon promise of reciprocity; that, as it has been held by a Federal court in the United States that an extradition treaty is retroactive in the absence of express stipulations to the contrary, the United States Government can promise reciprocity to Mexico in a case of a fugitive charged with bribery committed in Mexico before the supplemental convention went into effect, and that the President of the United States is greatly interested in the matter, and would be gratified if the desired extradition can be brought about.) Mr. Clayton to Mr. Hay. [Telegram-Paraphrase.] EMBASSY OF THE UNITED States, (Mr. Clayton reports that the Mexican Government will surrender Kratz upon full compliance by the United States with the requirements of the Mexican extradition law of 1897 and promise of strict reciprocity in any similar case, meaning any case of bribery committed prior to the supplemental convention between the United States and Mexico. Mr. Clayton advises immediate request for provisioral detention of Kratz if, under the treaty referred to, the Department of State decides to demand the extradition of Kratz.) No. 1986.] Mr. Clayton to Mr. Hay. EMBASSY OF THE UNITED STATES, ques SIR: I have the honor to acknowledge the receipt at 4 p. m., Saturday last, of Department's telegraphic instruction of the 10th instant relating to the extradition of Charles Kratz, which I brought to the attention of the foreign office on Monday by leaving a copy of said telegram with Subsecretary Algara, so that he might study the tions involved, and with the understanding that I would call on Tuesday to further discuss the matter with him, which I did on that day. At this interview it was agreed that upon our promising reciprocity in any similar case, and upon compliance with articles 4 and 16, and paragraph 1, article 32, of the Mexican extradition law of 1897, the Mexican Government would surrender the accused. It was definitely understood that the language to be used in the promise of reciprocity should be: "The United States of America will reciprocate in any similar case," meaning any case of bribery arising in Mexico committed prior to the supplemental convention. Mr. Algara fixed the time that the prisoner can be held provisionally, in case his provisional detention should be requested, at forty-five days. Having arrived at this understanding, I immediately telegraphed the Department. My suggestion therein contained as to the immediate request for his provisional detention is based upon the fact that the papers in the United States have been discussing his extradition under this process, the Mexican Herald, in an editorial of last Monday, indulged in similar discussion; hence I feared that Kratz might become alarmed and seek refuge elsewhere. I have, etc., Mr. Hay to Mr. Clayton. [Telegram.-Paraphrase.] POWELL CLAYTON. DEPARTMENT OF STATE, (Mr. Hay instructs Mr. Clayton to request of the Government of Mexico the provisional arrest and detention of Charles Kratz for bribery in Missouri, where warrant of arrest has been issued. Mr. Hay states that formal papers are being prepared; that the Mexican law of 1897 will be fully complied with; that strict reciprocity is promised by the Government of the United States; and that the fugitive is said to be at Guadalajara.) Mr. Clayton to Mr. Hay. [Telegram.-Paraphrase.] EMBASSY OF THE UNITED STATES, (Mr. Clayton reports that he made request on October 20 for the provisional detention of Kratz.) Mr. Clayton to Mr. Hay. [Telegram.-Paraphrase.] EMBASSY OF THE UNITED STATES, (Mr. Clayton reports that he has been informed by the Mexican foreign office that Kratz was arrested at Guadalajara on October 20, and that the requisition for his extradition must be made within thirty days from that date.) No. 1996.] Mr. Clayton to Mr. Hay. EMBASSY OF THE UNITED STATES, Mexico, October 24, 1903. SIR: I have the honor to acknowledge the receipt of Department's telegraphic instruction of the 15th instant. I was sick at Cuernavaca when it came, and the delay in its execution is explained by the following quotation from a letter from Secretary Hoefele to me of the 20th instant: I regret to inform you that owing to what appears to have been carelessness on the part of some servant at your house a telegram from the Department, dated the 15th, only came into my hands this morning. Mrs. Clayton sent it to me with a note, saying that she found it stuck in between some papers on her table. I immediately sent the request to the foreign_office, in accordance with the instructions you gave me in the matter before your departure. Before leaving for Cuernavaca, in expectation of such instruction and for the facilitation of its execution, I signed an application for the arrest and provisional detention of Kratz, leaving the date blank, which Secretary Hoefele filled in, and handed the application to Mr. Algara upon the morning of the 20th instant. This application did not promise in the exact language of your instruction strict reciprocity and compliance with Mexican law. In view of the delay referred to Mr. Hoefele thought it best to send the application as drawn by me, which the Mexican Government has accepted as sufficient. As I understand the Mexican law there must be two promises of reciprocity-first, of provisional detention; second, of surrender. In the preparation of the requisition in this case, unless the Department otherwise directs, I shall include a promise of strict reciprocity and full compliance with the Mexican extradition law of May 19, 1897 (see article 4). On the 21st instant I telegraphed Mr. Algara as follows: Very important provisional detention requested yesterday should be executed with utmost dispatch. Upon the same day I received his reply stating that the arrest of the accused had been effected at Guadalajara on the 20th instant, and that thirty-five days would be allowed for the presentation of papers in the case. On yesterday, not receiving the physical relief at Cuernavaca I had hoped for, I returned to this capital and to-day Secretary Hoefele has handed me a note from the foreign office, copy inclosed, received at the embassy on the evening of the 22d instant, after office hours, relating to the provisional detention of Kratz, and to questions which doubtless will be raised in the extradition case. The minister's reference, in paragraph 3 of said note, to article 2, is doubtless an error, and should be article 13. I have to-day replied to said note, copy inclosed. In this reply I did not deem it wise to express my personal views as to the questions referred to by Mr. Algara; doubtless the Department will prefer to refer these questions to its law officer. I believe it safe to assume that this extradition case will be fought by Kratz and his friends with the utmost vigor and with the best lawyers that money will command, at every stage of its proceedings, doubtless ending at last in the supreme court of the Republic, which court I do not think will overrule the decision of the executive department, whatever it may be. 1 inclose a copy of my telegram of the 22d instant to Mr. Algara, expressing my high appreciation of the prompt and effective action of his Government in the arrest of Kratz. I have, etc., POWELL CLAYTON. [Inclosure 1.-Translation.] DEPARTMENT FOR FOREIGN AFFAIRS, MR. AMBASSADOR: I have received the note of even date, in which, in the name of your Government, your excellency is pleased to ask for the provisional detention of the American citizen Charles Kratz, accused of the crime of bribery committed in the State of Missouri. Your excellency is pleased to add that Kratz's arrest has been ordered by competent authority, and to promise reciprocity in every like case, and to present the demand with the proofs of fact and law required by the Mexican law of extradition of May 19, 1897. The petition contained in your excellency's note to which I refer is in accordance with the precepts of article 2 of the said law, and in this view the Executive has had no objection in granting it, and has consequently directed the governor of the State of Jalisco to procure the detention of the accused, fixing the term of thirty-five days for the presentation of the extradition papers in due form. I think it proper to make a statement of this case: In May, 1902, your excellency was pleased to ask, by direction of your Government, for the extradition of Kratz for the said crime of bribery, and this department did not grant the said petition for the reason that the offense was not included in the treaty of February 22, 1899. Promise of reciprocity and submission of the Government of the United States to our general extradition law were not offered at that time by the Government of the United States. A remedy was found for this condition by the celebration of an agreement between Mexico and the United States by which the crime of bribery was added to the list of those included in the treaty of 1897. The new treaty went into effect on July 25, 1902, and the difficulties which attended cases like that of Kratz were obviated for the future, but not for the one in question, as the embassy understood that the Mexican Government could not give retroactive effect to the treaty, and apply it to cases which had arisen before its celebration. In this state of things, after conference had been had with the undersigned with regard to the antecedents referred to, your excellency was pleased to present the petition for extradition contained in the note to this department to which I reply. It has been said, even by the press, that the Government of the United States did not give retroactive effect to treaties of extradition, an opinion with which this department does not concur, as already stated, for the reason that extradition is like a criminal cause-it has the same results, and that which could not be admitted in a criminal cause can not be accepted in a proceeding for extradition. This department respects the opinion in question of the United States, the basis of which it does not know and which it would like to know, because of the gravity of the point and the legislation of both countries being very similar. Putting aside, then, in view of what has been set forth, the retroaction, the difficulty as to grant or not to grant the extradition remains, in view of that which is established by our general law on the matter, article 1, Section II, concordant to article 32 of the said law. |