Ernest Dichman to Ernest Dichman, October 30, 1878

No. 120. Mr. Dichman to Mr. Evarts.

Sir: Before leaving the United States my attention was called, at the Department, to the subject of an extradition treaty with this country. The inclosed copies of correspondence will show to the Department what I have done in this matter, upon which I desire to make the following observations:

The Department will learn from the inclosed papers, that in my intercourse with the Colombian Government I have treated the general subject of extradition as entirely separate from the right to bring criminals across the Isthmus of Panama. The latter is a matter of importance to the Government of the United States, and, I think, ought to be settled in the direction indicated in my letter to the secretary of foreign relations of Colombia. In my conversations with him on this subject, I have endeavored to impress him fully with the following points, viz:

• That extradition of criminals is no longer a measure of exceptional gravity, but that as nations have extended and multiplied their relations they have realized the necessity of mutually aiding each other in the repression of offenses against the laws of universal morality and justice.
• That the transit across a nation’s territory cannot be considered in the light of extradition, on the ground that a criminal brought to the borders of a State under compulsion, for the purpose of transit, cannot be compared to one who voluntarily seeks an asylum there under the protection of its laws, and for the surrender of whom the power of the State has to be invoked.
• That aside from the general principle stated in the aforesaid No. 2 (and to avoid difficulties arising under the constitution of Colombia), the right of transit guaranteed to the Government of the United States by the treaty of 1846, clearly embraces the transfer or transit of criminals by the Government of the United States.
• That the right of transit being guaranteed to the Government of the United States by treaty prior to the adoption of the constitution of the United States of Colombia, no possible benefit of its “bill of rights” can inure to a criminal to be taken across the Isthmus of Panama by the Government of the United States.

The main issue between the secretary of foreign relations and myself is as to what papers or proofs, in the case of a criminal brought by the Government of the United States to the Isthmus of Panama, for transit, are to be exhibted to the Government of Panama as the constitutional agent of the Government of the United States of Colombia, it being inadmissable, in my opinion, for the United States to consent to the exercise of any discretion whatever on the part of the Government of Panama, while the secretary of foreign relations contends, as shown in his conditions 2 and 3, for a discretion to refuse the transit.

As to the general subject of an extradition treaty with this country, I do not deem it advisable to negotiate one at present, but will keep the question before the Colombian Government, and continue to discuss the same informally, in order that a treaty may be negotiated at any time the Department may deem advisable. I do not believe that the Colombian Government, if an extradition treaty were negotiated and ratified, would be able to carry it out at all times. The want of a federal judiciary and federal officers in the different States, and the necessity of relying upon the State governments to execute an international agreement, produces complications wherever the State and federal governments are in the hands of parties opposed to each other. A demand might be made upon the Colombian Government, under the terms of a treaty, for the surrender of a criminal, with which it could not comply even with the greatest disposition on the part of the government to fulfil its agreement, thus giving rise to misunderstandings between the two governments, which had best be avoided.

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I am, &c.,