For these reasons the court declares: That extradition is granted on condition that the authorities of the country requesting extradition apply to the prisoner, in case of condemnation, the punishment immediately inferior to the death penalty, if this latter shall be imposed, and the fulfilment of this condition is intrusted to the good faith and guaranty of the Government of the United States of America. [SEAL.] A true copy. JUAN BTE. ARUMBURU, (Signed) Director of the Section of Political Affairs. HORACIO R. LARRETA. File No. 14040/13. Minister Eddy to the Secretary of State. [Telegram-Paraphrase.] AMERICAN LEGATION, Buenos Aires, October 8, 1908. Reports that minister for foreign affairs, after referring to article 4 of extradition treaty, which agrees to extradition of criminals in accordance with laws of country from which criminal is extradited, and quoting Argentine law, article 667 of Criminal Code, thinks it doubtful if prisoner can be given up unless it is guaranteed that death penalty will not be inflicted. Mr. Eddy explained that, as there was no national penal code in the United States, he doubted if such guaranty could be given. Adds that minister promised to obtain opinion of attorney general. File No. 14040/13. The Secretary of State to Minister Eddy. [Telegram-Paraphrase.] DEPARTMENT OF STATE, Washington, October 19, 1908. Secretary Root informs Mr. Eddy that it is impossible for Federal authorities to give guaranty, as under the dual government of this country criminals are punishable exclusively by States for violation of State laws. Informs him that the governor of New York says he has not the power to stipulate as suggested by the authorities of Argentina. Says the department does not perceive that proposed condition is warranted by treaty, as article 4 refers to mere procedure and not to substantive law, and that article 648 of Argentine code, which provides that in extradition under treaty the treaty and not local law controls, sustains this view. Instructs him, pending the settlement of this question, to take every precaution to have fugitive detained. 22591°-FR 1909--2 File No. 14040/22-23. No. 38.] Minister Eddy to the Secretary of State. AMERICAN LEGATION, Buenos Aires, October 28, 1908. SIR: Referring to the department's telegram of the 19th instant in regard to the extradition of Vito Damiano, I have the honor to report that upon receipt of this cable I immediately sent a note to the Argentine minister for foreign affairs stating that I had been notified by my Government that neither the Federal authorities nor those of the State of New York were authorized to guarantee that Damiano, if extradited, would not suffer the death penalty if convicted of the crime of murder in the first degree. I further pointed out that my Government did not consider the proposed condition warranted by the extradition treaty between the two countries and cited article 648 of the Argentine Penal Code, which provides that extradition should be granted according to treaty and not according to local law. The next day, in conversation with the minister for foreign affairs, I again brought the matter up and stated that in various previous cases in which this legation had demanded the extradition of criminals no such condition had ever been mentioned, and that if the Argentine Government insisted upon such an interpretation the extradition treaty between the two countries would become quite worthless as far as the United States was concerned, as that Government could hardly give the assurance demanded by the Argentine Government that when a crime on which the demand for extradition is founded has a lesser penalty in the Republic extradition of the accused is only agreed to under the condition that the courts of the claiming power will apply to him the lesser penalty." Article 667, Código de Procedimientos en lo Criminal. The minister appeared to appreciate the position taken by the department, and promised to submit the matter to the attorney general without delay. I am now in receipt of a note from the ministry for foreign affairs, dated October 27, a copy of which, together with translation of same is inclosed herewith, stating that in accordance with the opinion of the attorney general the case has been referred back to the court which gave the sentence for measures to be taken to provide for the suppression of the clause objected to by the department. I shall do everything in my power to obtain the decision of the Argentine Government with as little further delay as possible, and shall notify the department promptly of the result. I have, etc., SPENCER EDDY. [Inclosure--Translation.] The Minister for Foreign Affairs to Minister Eddy. THE FOREIGN OFFICE, Buenos Aires, October 27, 1908. Mr. MINISTER: I have the honor to acknowledge the receipt of your excellency's note of the 20th instant, in which, in accordance with telegraphic instructions from your Government, you observe that the clause, by which the extradition of Vito Damiano has been granted by the federal judge of the capital, Dr. Rodriguez Larreta "on condition that the authorities of the country making the request, apply to the person whose extradition is demanded, in case of condemnation, the punishment immediately inferior to that of death, if this should be imposed"-a condition which your excellency says is not in accordance with the stipulations of the treaty existing between both countries. In reply I beg to inform your excellency that in accordance with the opinion of the procurador general of the nation (attorney general), your excellency's note, together with the other documents, have been sent to the procurador fiscal (prosecuting attorney) in order that he may again take the proper steps toward obtaining the suppression of the said clause in the sentence referred to. As soon as I shall have been informed of the definite decision of the judge, Dr. Rodriguez Larreta, I shall make haste to communicate the same to your excellency. Meanwhile I take pleasure in renewing, etc., File No. 14040/29. V. DE LA Plaza. Chargé Wilson to the Secretary of State. [Telegram-Paraphrase.] AMERICAN LEGATION, Buenos Aires (Received February 25, 1909). Reports that the supreme court has granted the unconditional extradition of Damiano, and that agent and prisoner leave on March 10 on steamship Verdi. File No. 14040/31. No. 96.] Chargé Wilson to the Secretary of State. AMERICAN LEGATION, Buenos Aires, March 1, 1909. SIR: Referring to the legation's telegram dated February 25, 1909, I have the honor to report that on February 13 the supreme court granted the unconditional extradition of Vito Damiano, and that on February 25 the foreign office notified the legation that the Argentine Government was ready to surrender the prisoner to the United States authorities. I therefore wrote to the foreign office requesting that he should be delivered to Mr. Rocco Cavone, the agent authorized by the President, on board the steamship Verdi (the first direct boat for New York) sailing from Buenos Aires on March 10. As previously reported (see legation's dispatches Nos. 30 and 38, dated October 7 and October 28, 1908, respectively), the judge of the federal and correctional court granted the extradition of Damiano on condition that in case Damiano should be judged guilty of murder by the American courts, the punishment immediately inferior to the death penalty should be inflicted upon him in accordance with the Argentine Code, which provides that "when the crime on which the demand for extradition is founded has a lesser penalty in the (Argentine) Republic, the extradition of the accused is only agreed to under the condition that the courts of the claiming power will apply to him the lesser penalty," which would mean that 25 years' imprisonment would be the maximum punishment which could be imposed upon Damiano by the American courts. The legation immediately notified the foreign office that it could not accept extradition on these terms as this decision was not authorized by the extradition treaty between the two countries nor by Argentine law. The legation's note was passed to the attorney general, who decided favorably, and who directed the fiscal to request the criminal judge to grant the extradition without conditions. This the judge refused to do, stating the condition formed a part of the sentence. The case was then appealed to the federal chamber, which stated that it agreed with the attorney general and the fiscal and directed that extradition should be granted unconditionally. The next appeal was to the supreme court, which, as already stated, handed down a decision favorable to the United States, granting the unconditional extradition of Damiano. In this connection I have the honor respectfully to renew my suggestion that as the granting of extradition here is a long process, in future cases the formal papers should be sent by mail within the two months prescribed by treaty, and that the agent should be sent out only after extradition has been granted. That such proceedings would result in a saving of time and expense is shown not only in the present instance, but also in the previous recent cases of Moses Ferris and Ross W. Douglass. (See dispatch No. 782 of August 13, 1908.)1 This is the practice of other countries, as the Spanish, Italian, and French legations, which have numerous cases of extradition, inform me that it usually takes from six months to a year after the formal request is made before the extradition is finally granted. I have, etc., CHARLES S. WILSON. • Not printed. AUSTRIA-HUNGARY. APPLICATION OF THE ADMINISTRATIVE PROVISIONS OF THE COMMERCIAL AGREEMENT BETWEEN THE UNITED STATES AND GERMANY TO AUSTRIA-HUNGARY. File No. 14867/5. The Chargé of Austria-Hungary to the Secretary of State. No. 1809.] EMBASSY OF AUSTRIA-HUNGARY, Manchester, Mass., July 22, 1909. YOUR EXCELLENCY: Referring to our numerous conferences on the subject, I have the honor, in pursuance to instructions from my Government, to inform your excellency that the latter would greatly appreciate an official declaration by the State Department to the effect that the administrative provisions of the commercial agreement concluded between the United States and the German Empire in 1907, will, as far as they remain in force during the period prescribed after such denunciation has been made, be likewise applied to Austrian and Hungarian imports. My Government points to the fact that this would not imply a new concession on the part of the United States, but merely the continuance of an existing condition during the six-months denunciation period. It believes that it can count on an absolutely equal treatment of our products with those of the German Empire as far as the administrative provisions are concerned, for the reason that a differential treatment of Austria-Hungary would have to be regarded by it as a violation of the principle of the most favored nation, which is applied to the United States by the Austro-Hungarian Monarchy in the most faithful manner. I am aware that the State Department will be unable to make an authoritative declaration regarding the future tariff treatment of foreign nations until the tariff now under discussion is permanently adopted. However, in view of our commercial interests, I should greatly appreciate an exhaustive and, as I hope, satisfactory answer to this note as soon as the new tariff bill becomes a law. While having the honor to request as early a reply as possible, I avail, etc. L. AMBRÓZY. 21 |