In that reply I stated that, with a view to preventing, if possible, the total defeat of the ends of justice in the cases in question, I would forward the letter to the governors of the States of Pennsylvania and New York for such action as they might find it proper to take, the letters being respectively addressed to the authorities in those States. At the same time I took occasion to reserve what I regarded as the clear right of the Government of the United States, under the treaty with Italy, to require the delivery of the fugitives for trial in this country.

"In answer to this you remind me that this question has been discussed at length and entirely settled by the royal ministry of foreign affairs and the United States legation at Rome; that Mr. Stallo, lately the minister of the United States to Italy, must have informed this Department that, according to Italian law, no citizen can be removed from the jurisdiction of his natural judges, the judges of his own country; and that, although an exception is made to this principle when a citizen who has committed a crime in a foreign country is there arrested, it nevertheless resumes its force when he returns to his own country. You also state that the new Italian penal code expressly forbids the extradition of Italian subjects, and declare that this principle now forms a part of public law, which the United States has recognized in many of its treaties.

"You are correct in your supposition that Mr. Stallo informed the Department of the provisions of Italian law on the subject, but the Depart

ment is surprised to learn that the Government of Italy entertains the impression that the question was settled by the royal ministry of foreign affairs and the United States legation at Rome. In various interviews with the royal ministry of foreign affairs reported by him to the Department, as well as in formal communications addressed to that ministry, Mr. Stallo protested against the position of the Italian Government; and the Department is not informed of anything said or written by him that savored of acquiescence. . .

"In order to understand the present controversy, it is necessary to revert to its origin. It did not arise in the cases of Villella and Bevivino, but in that of Salvatore Paladini, whose extradition Mr. Stallo, on May 17, 1888, demanded of the Italian Government on a charge of passing counterfeit money of the United States, for which Paladini was under indictment in the district court of the United States for the district of New Jersey. . . . . On October 25, Mr. Crispi, more than 5 months after the original demand, announced that, according to the Italian procedure, the minister of grace and justice had submitted the demand to the successive examination of the criminal section of the court of appeals of Messina, of the council of state, and of the council of ministers, and that they were unanimously of opinion that Paladini should not be extradited, for the reason that he was an Italian subject. This opinion, he said, was based upon certain principles, which he stated. It is unnecessary to recount them, since they are the same,

in almost the same language, as those set forth in your note.

"In January, 1899, the Department received from Governor Beaver, of Pennsylvania, information that two Italians, named Vincenzo Villella and Giuseppe Bevivino, charged with the

commission of atrocious murders in Luzerne County, Pa., had taken refuge in Italy. The Department at once telegraphed information of the facts to the legation at Rome. Mr. Stallo saw the minister of foreign affairs, and, laying the facts before him, was assured that measures would at once be taken for the arrest of the accused and for their eventual trial in Italy as soon as he could give their names, which he was at that time unable to do, owing to a confusion in the telegrams.

"On January 30, 1889, Governor Beaver made a formal request that the extradition of the fugitives be demanded. He had been informed of the attitude of the Italian Government in the case of Paladini, but because of the importance of inflicting punishment upon the criminals in Pennsylvania, and influenced by an opinion which, he had been informed, had been expressed by the Italian consul at Philadelphia to the effect that the fugitives would be given up, he asked the Department to endeavor to obtain their surrender. A President's warrant was accordingly issued to John R. Saville and Frank P. Dimaio, the persons designated by Governor Beaver to receive the fugitives, and Mr. Stallo was so informed. These agents, Mr. Stallo was also informed, would take with them authentie proof of the guilt of the fugi

tives, and upon arriving in Italy would proceed at once to Rome to consult with him. Meanwhile he was to ascertain whether the extradition of the fugitives could be obtained, and to apply to the Italian Government for that purpose.

"On February 20, Mr. Stallo acknowledged the receipt of the papers, which he transmitted to the foreign office, with an application for the fugitive's surrender, coupled with an expression of the earnest desire of the United States that the determination in the Paladini case should be reconsidered. Mr. Stallo also called attention to the fact that the principal witness against the two fugitives was their accomplice, Michele Rizzolo, who was under arrest at Wilkes-Barre, in Pennsylvania, and had made a full confession, and that it was impracticable to bring this witness, either before or after his trial, to Italy in order to testify before an Italian court.

"On the 7th of March, Mr. Stallo enclosed to the Department a note from Mr. Crispi, bearing date of the preceding day, in which the surrender of the fugitives was refused. The reasons given were the same as those stated in the case of Paladini.

"It was in view of the total divergence of opinion between this Government and that of His Majesty, developed in the preceding correspondence, that I deemed it necessary to make the reservation contained in my note of the 21st of March last. I shall now endeavor to show that that reservation was not only justified, but also required, by the circumstances.

I do not understand the Italian Government to deny that the provisions of the treaty of 1868, if not obstructed by any municipal statute or qualified by any principle of international law, would oblige the contracting parties to deliver up their citizens. Indeed, I assume this to be admitted. The treaty says that the two governments mutually agree to deliver up 'persons who, having been convicted of or charged with the crime specified in the following article committed within the jurisdiction of one of the contracting parties, shall seek an asylum or be found within the territories of the other.' As the term 'persons' comprehends citizens, and as the treaty contains no qualification of that term, it is unnecessary to argue that the treaty standing alone would require the extradition by the contracting parties of their citizens or subjects.

"I shall also assume it to be admitted by the Italian Government that the parties to a treaty are not permitted to abridge their duty under it by a municipal statute. It is true that the authorities of a country may, by reason of such a statute, find themselves deprived of the power to exeeute a treaty. But if, in obeying the statute, they violate or refuse to fulfill the treaty, the other party may justly complain that its rights are disregarded and may treat the convention as at an end. Hence, in appealing to its statutes to justify its action in the present case, I understand the position of the Italian Government to be that those statutes are merely declaratory of the law by which nations are bound to be gov

erned in their dealings one with another.

"We are brought, therefore, to the consideration of the question whether the refusal of the Italian Government to deliver up Paladini, Villella, and Bevivino, under the treaty of 1868, is justified by the principles of international law. The answer to be given to this question must be decisive of the matter.

"It is stated-and the statement has the sanction of the eminent Italian publicist, Fiore-that the refusal to surrender citizens had its origin in the practice of extradition by France and the Low Countries in the eighteenth century. Formerly such an exception was not recognized. Even the Romans, who were not wanting in a disposition to assert their imperial prerogatives, did not refuse to deliver up their citizens, their feciales being invested, in respect to states in alliance with Rome, with authority to investigate complaints against Roman citizens and to surrender them to justice if the complaints were found to be well grounded. The exception of their citizens by France and the Low Countries originated in the following

manner:

"The two countries practiced extradition, not under a convention, but under independent declarations of a general character. By the Brabantine Bull, issued by the German Emperor in the fourteenth century, subjects of the Duke of Brabant enjoyed the privilege of not being withdrawn from his jurisdiction. A similar privilege was gradually extended by law and usage to other subjects of the House of Austria, while the Low

Countries were still under its dominion. In consequence of the establishment of this rule, the Low Countries refused to deliver up their subjects, and France, as an act of retaliation, refused to surrender Frenchmen. Thus, not in recognition of any principle, but merely with a view to observe a strict reciprocity, was the precedent first established.

"That the example thus set has generally been followed by European states is not to be questioned; for, with the single exception of England, it is believed that they have adopted the rule of refusing to deliver up their citizens. But, in order to determine the force and effect of this rule from the point of view of international law, it is necessary to inquire how it has been secured and enforced. Where no treaty exists, the subject is simple. It is generally agreed that, in the absence of a convention extradition is a matter of comity, and not of positive obligation. In such case, each nation is free to regulate its conduct according to its own discretion. If it declines to surrender its citizens, its action, though detrimental to the interests of justice, does not afford ground for complaint or pressure, since it is acting within its right. But, where the subject is regulated by treaty, the case is different. What before was a matter of comity and discretion, becomes a matter of duty, and the measure of that duty is the treaty. It is not strange, therefore, that, in order to avoid the obligation to extradite their citizen, the states of Europe have industriously inserted in their treaties an express stipulation

to exempt themselves from that obligation. With respect to those who are to be surrendered, they usually employ, as is done in the treaty between the United States and Italy, the general term 'persons.' Having used this term, they then proceed to insert a clause to except their citizens from the general obligation; and it is by means of this clause, and not by reason of an implication created by international law, that the duty of surrender is avoided.

"More cogent proof of this fact could not be found than is afforded by the extradition treaties of the United States with European nations, to which you refer for the purpose of showing that this Government has recognized the exemption of citizens by international law. Among those treaties is that with Prussia and other German states, concluded June 16, 1852, which is the first in which the United States admitted an exception of citizens. It is a part of the public history of extradition that for years the Government of the United States refused to negotiate treaties for the surrender of fugitives from justice with several of the states of Europe, because, owing to the limitations of their domestic laws, they insisted upon the insertion of a clause to exempt their citizens. It was for this reason alone that this Government, in order to avoid the misfortune of a total lack of extradition, finally admitted the exception. Accordingly, we find in the preamble to the treaty with Prussia and other German states, the following recital: 'Whereas it is found expedient for the better administration of justice