way. Those statements are printed at their proper places in this document. Under Spain, a copy of a dispatch from the consul-general at Havana is printed, in order to show what was the course pursued in obtaining the extradition of two criminals from the island of Cuba.

I am also able to print, as one of the appendices to the report, a tabular statement which has for a long time been in preparation, of the requisitions made by the United States upon foreign governments, of those made by foreign governments upon the United States, and of warrants of surrender and mandates of arrest granted by the Government of the United States, since the conclusion of the treaty with Great Britain of August 9, 1842, from which the history of extradition in the United States under conventions practically dates. I desire to acknowledge my obligations to James Wilson Bayard, esq., of the Department of State, for assistance in compiling the lists of requisitions; and to John D. Lindsay, esq., assistant district attorney for the city and county of New York, for information touching the results of numerous applications to foreign governments for the extradition of fugitives from the justice of the State of New York.

It is to be regretted that we are unable to give the results of applications in the majority of cases for the extradition of criminals who have sought refuge in British North America. In the countries in which diplomatic representatives reside the result of the application is given if the fugitive was found. The information from the consuls in Canada is meager. It is also to be observed that information has not been obtainable as to the surrenders granted under the border States clause in the treaty between the United States and Mexico. It is very seldom that a case arising under that clause is brought to the attention of the Department of State.

An index has been added to the present edition of the report.

J. B. M.

SIR: I have to acknowledge the receipt of Mr. Tree's dispatch, No. 406, of the 31st of October last, in which he informed the Department of the provisional arrest and detention by the Belgian authorities, upon the request of this Government, through its legation at Brussels, of one Sambalino, who has since been extradited to the United States.

With his dispatch Mr. Tree inclosed a copy and translation of a note of his excellency the Prince de Chimay, Belgian minister of foreign affairs, bearing date the 27th of October, and responding to Mr. Tree's request for Sambalino's provisional detention. His excellency states that the consul of the United States at Antwerp had solicited the temporary arrest of the fugitive, who had, accordingly, been detained at Antwerp since the 19th of October. His excellency then observes that the convention between the United States and Belgium of the 30th of June, 1882, does not contain any stipulation determining the conditions under which provisional arrest may be claimed from the Belgian Government and reciprocally from the Government of the United States. His excellency further states that until 1886 the telegraphic requests of the Belgian Government for such arrest had been welcomed by the Secretary of State of the United States and the judicial authorities in this country; but that a change then took place. The Belgian Government, he states, having solicited the temporary arrest of two fugitives, named Mandelius and Edelhausen, the Secretary of State informed His Belgian Majesty's representative at Washington, on the 2d of August, 1886, that, although the Department of State had in some preceding cases issued a warrant with a view to the arrest of fugitive criminals without waiting for the presentation of formal evidence of the offense charged, such a proceeding would not be followed thereafter unless expressly authorized by treaty stipulation. It is remarked, however, that in the note conveying this decision the Secretary of State observed that the provisions of section 5270 of the Revised Statutes of the United States were sufficient, in the absence of treaty stipulations, to cover the case then under consideration. But the minister of foreign affairs states that the judge at New York decided differently, and that subsequently the Belgian chargé d'affaires at Washington unsuccessfully endeavored to secure an additional provision in the treaty to secure arrest on telegraphic information.

It does not appear by our records in what form the question above stated came before a judicial magistrate in New York; whether he gave his opinion in a case actually before him, or merely by way of advice in advance of a case arising. But in the view the Department takes of the subject these considerations are not material.

At or near the time when this Department, in 1886, notified the minister of Belgium, in the case of Mandelius and Edelhausen, that the issuance of preliminary certificates to obtain the provisional arrest of fugitives had been discontinued, save in cases of explicit treaty requirement, applications for such papers were made by other governments than that of Belgium and refused. It is well known that the issuance of these so-called warrants of arrest was not required by any statute of the United States, but was begun many years ago, and practiced from time to time, in consequence of the opinion expressed by some of our judges that our judicial magistrates possessed no jurisdiction to entertain proceedings for the apprehension and committal of alleged fugitive criminals without a previous requisition from the government of the country in which the offense was committed upon the President of the United States, and the obtainment of his authority for such proceedings.

In recent years, however, there had been a decided preponderance of opinion to the effect that the intervention of the President was not essential, under our laws, to secure the arrest and detention of fugitives from justice in this country, and in consequence of this, and as no such intervention was expressly authorized, the Depart

8

ment, in 1886, came to the conclusion to abstain from issuing preliminary certificates or warrants, except in cases of express conventional obligation.

Since that time the question has been brought before the Supreme Court of the United States and the position of the Department sustained. I refer to the case of George Benson, alias M. R. Mayer, whose extradition from the United States was demanded by the Government of Mexico in 1886.

Ou the 4th of December of that year the Mexican minister at this capital informed the Department that he had been instructed by his Government, by telegraph, to apply to that of the United States for the extradition of the fugitive in question, who had been guilty of a swindling operation in the City of Mexico, having falsely represented himself to be the agent of Madame Adelini Patti for the sale of tickets for an operatic performance, and thus fraudulently obtained upwards of $20,000, with which he had absconded and was believed to have fled to the United States. The minister requested the Secretary of State to cause orders to be issued for the fugitive's

arrest.

To this communication the Department replied on the 8th of December, 1886, saying that in its opinion the provisions of section 5270 of the Revised Statutes of the United States were sufficient for the purpose of obtaining the fugitive's arrest, but at the same time calling attention to the fact that the minister's note contained no specification of any of the offenses enumerated in the extradition treaty between the United States and Mexico of December 11, 1861.

On the 8th of December the Mexican minister replied that he deemed the offense with which the fugitive was charged to be comprised in that of forgery, mentioned in the third article of the treaty; and referred to the request contained in his note of the 4th of December in respect to the fugitive's arrest.

On the 15th of December the Department replied, still declining to act, and on the same day the minister, being convinced of the correctness of the Department's position, withdrew his requests. Copies of this correspondence are herewith inclosed. Having arrived in the city of New York, Benson was arrested on a warrant issued by Samuel H. Lyman, esq., commissioner of the circuit court of the United States for the southern district of New York, without the intervention of this Department in the matter, upon a complaint made before him by the consul-general of Mexico at the city of New York, charging the fugitive with having committed the crime of forgery in Mexico. The proceedings before the commissioner resulted in the commitment of the fugitive for surrender on that charge.

A writ of habeas corpus was then, upon proper application, allowed by Justice Blatchford, of the Supreme Court of the United States, to bring the prisoner before the circuit court of the United States for the southern district of New York. Upon the hearing in the circuit court the writ was discharged and the prisoner remanded to the custody of the United States marshal. From this judgment an appeal was taken to the Supreme Court of the United States.

In the course of its unanimous judgment, which was delivered by Mr. Justice Miller, that tribunal said:

"This proceeding was instituted before the commissioner, under Title LXVI of the Revised Statutes of the United States, concerning extradition. The first section reads as follows:

"SEC. 5270. Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government any justice of the Supreme Court, circuit judge, district judge, commissioner authorized to do so by any of the courts of the United States, or judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within the limits of any State, district, or Territory with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.'

"There is no evidence in this record, at least there is no copy of any demand or requisition made by the Mexican authorities upon our Government for the extradition of this prisoner. The proceedings, therefore, up to this time rest upon the initiative authorized by the statutes upon that subject, the Mexican Government, however, being represented by counsel, and the correspondence with its officers which was introduced into the records showing their interest in the matter and their purpose to have this prisoner brought to that country for trial.

"The treaty under which this right to arrest the prisoner and detain him for extra. dition is asserted was concluded at Mexico, December 11, 1861, and proclaimed by the President of the United States June 20, 1862 (12 Stat., 1199). It has the usual provisions, that the contracting parties shall, on requisitions made in their name, deliver up to justice persons who, being accused of the crimes enumerated in article 3, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other.

*

"As the case appears before us, on the transcript of the evidence produced before Commissioner Lyman and before the circuit court on the writ of habeas corpus, it is considerably confused, but very full and elaborate. Several questions in regard to the introduction of evidence, which were raised before the commissioner, some of them concerning the sufficiency of the authentication of papers and depositions taken in Mexico, and as to the testimony of persons supposed to be expert in the law of that country regarding the subject, are found in the record, which we do not think require notice here. The writ of habeas corpus, directed to the marshal of the southern district of New York, does not operate as a writ of error, and many of the orders and decisions made by the commissioner at the hearing which took place before him become unimportant in the examination of the sufficiency of the proceedings under which he ordered the prisoner into custody. The main question to be considered upon such a writ of habeas corpus must be: Had the commissioner jurisdiction to hear and decide upon the complaint made by the Mexican consul; and also, was there sufficient legal ground for his action in committing the prisoner to await the requisition of the Mexican anthorities?

"In regard to the jurisdiction of the commissioner to hear the complaint no doubt can be entertained."

And after a full examination of the case the judgment of the Supreme Court was concluded as follows:

"We are of opinion that the decision of Commissioner Lyman committing the prisoner to the custody of the marshal to await the requisition of the Mexican Government was justified, and the judgment of the circuit court dismissing the writ of babeas corpus is accordingly affirmed."

This judgment settles the point that under section 5270 of the Revised Statutes of the United States a fugitive from the justice of a Government with which the Government of the United States has a treaty or convention of extradition may be arrested in this country and held for examination on a charge of having committed in the foreign country an offense specified in such treaty or convention without any previous intervention on the part of the President or proof that a requisition has been made. Under this statute is it believed that there exists in the United States a very liberal system of provisional arrest and detention of fugitives from foreign justice, under which, upon oaths made on information and belief (a requirement which the preliminary mandate formerly issued by the Executive did not dispense with), such fugitives are constantly arrested and held without interference on the part of the executive branch of the Government of the United States to await examination before our judicial magistrates in accordance with our laws. No time is specified during which a fugitive may be so held; but the judicial officer decides in each case what term is reasonable under all the circumstances for the detention of the fugitive pending the reception of the formal proofs of his culpability and their examination. Save in cases in which the question of the necessity of executive interference was formerly raised, this Department has received no complaints of the refusal of judicial magistrates to grant proper facilities. On the contrary, it is believed that such magistrates have generally construed their powers with as much liberality as is consistent with the security which all persons, both citizens and foreigners, should enjoy against unfounded arrest and detention.

It is hoped that this statement will prove satisfactory to the Belgian Government in respect to the subject of provisional arrests in the United States, and you are at liberty to communicate a copy of this paper to his excellency the minister of foreign affairs. I am, sir, your obedient servant,

Mr. SECRETARY: I have the honor to inform you that I have received instructions from my Government, by telegraph, to apply to that of the United States for the extradition of a German named M. R. Mayer, who has been guilty of a swindling oper

ation in the City of Mexico, having represented himself to be Mr. Abbey's agent for the sale of season tickets for the opera of Madame Adelina Patti's company, and having absconded from that city after fraudulently securing upwards of $20,000. To-day's papers have published the particulars of this swindle.

Mayer appears to have gone in the direction of El Paso, Texas, on his way to this country. He is a short and stout man, of light complexion, with black hair, heavy moustache, and about forty years of age.

Pending the receipt of the necessary documents from the Mexican authorities, making application for his extradition, I will thank you, Mr. Secretary, if you have no objections, to cause orders to be issued for Mayer's arrest, so that the ends of justice may not be defeated by his escape.

Be pleased, etc.,

[Inclosure 2.]

M. ROMERO.

Mr. Bayard to Mr. Romero.

DEPARTMENT OF STATE,

Washington, December 8, 1886.

SIR: Referring to your note of the 4th instant, stating that a German, named M. R. Mayer, who has been guilty of a swindling operation in the City of Mexico, having fraudulently obtained upwards of $20,000 by representing himself to be the agent of Mr. Abbey for the sale of season tickets for an operatic performance by the company of Madame Adelina Patti, is belic ved to have fled to the United States, and requesting this Department to cause orders to be issued for Mayer's arrest, so that the ends of justice may not be defeated by his escape, I have the honor to inform you that, in the opinion of the Department, the provisions of section 5270 of the Revised Statutes of the United States are sufficient for the purpose of obtaining the fugitive's arrest, and that the Department is not authorized in taking any action in the present stage of the case. It may not, however, be improper to observe that there is no specification in your note of any of the extraditable offenses enumerated in the treaty of December 11, 1861, which regulates the subject of extradition between the United States and Mexico.

Mr. SECRETARY: I have had the honor to receive your note of this date, wherein, referring to my note of the 4th instant, in which I asked the arrest of an individual who assumed in the City of Mexico the name of Marcus R. Mayer, agent of Mr. Henry E. Abbey, and who, according to the reports published by the papers of New York, appears to be really named Charles Bourton, and who in that city fraudulently obtained a considerable sum of money through the sale of tickets for the operatic performances of Signora Adelina Patti, you were pleased to state to me that, in the opinion of your Department, the provisions of section 5270 of the Revised Statutes of the United States are sufficient for the purpose of obtaining the arrest of the fugitive, at the same time remarking that my note did not express any offense enumerated in the treaty of December 11, 1861, between Mexico and the United States, as having been committed by the person in question.

Although, because sufficient time therefor has not supervened, the data to enable a judgment to be formed of the precise nature of the offense have not yet been received, I deem it to be comprised in that of forgery mentioned in the third article of the convention of December 11, 1861, since Bourton assumed in Mexico the name of Marcus R. Mayer, who is the real agent of Mr. Abbey, and under that name issued tickets and gave receipts for the money which was paid to him.

I have already given instructions to the Mexican consuls at El Paso and Laredo, Texas, and in the cities of New York and New Orleans, to go before the judges of the respective districts for the purpose of procuring the arrest of Bourton, in compliance