treaty, of fugitives from justice from Mexico, I should be pleased if you would call at the Department at your convenience, in order that we may confer upon the subject.

I should be glad to consider with you at the same time the question of the surrender, under Article IV of the treaty, of the citizens of the country from which the surrender is requested for crimes committed in the other. The President of the United States, in the exercise of his discretion, recently permitted the extradition of Mrs. Mattie Rich, a citizen of the United States, at the request of Mexico; while, on the other hand, President Diaz recently refused to permit the surrender of Leonardo Gonzales. Inasmuch as the request was made in this case by the governor of Texas on the governor of Coahuila, the papers and evidence in the case did not pass through the Department of State, and it refrains from expressing any opinion on the question whether there was, as decided by the Mexican Government, an entire want of proof of the corpus delicti, without which extradition would properly be refused in any case. But there was apparently another ground of the decision of the Mexican Government which, if correctly understood by the Department and rigidly adhered to in the future, would endanger the successful operation of this clause of the treaty. It seems to be implied in said decision that it is, under the laws of Mexico, an indispensable prerequisite to the arrest and commitment for trial of anyone accused of murder that there be technical proof of the crime by a coroner's inquest and by an autopsy, so that the fact of death must be established by evidence of officials charged with the duty of holding such inquest and the cause of it established by scientific evidence of physicians holding the autopsy. Under the laws of the United States the fact of death, as well as the cause of it, must be proved in order to warant conviction; but no particular form of proof is necessary for the purpose of arrest and commitment for trial, it being necessary only to show prima facie or probable cause. Nor are those formal and technical proofs indispensable to conviction. It not unfrequently happens, in cases of murder, that the guilt of the accused can only be shown by circumstantial evidence, and no particular species of evidence is formally prescribed as indispensable to conviction. There is only one indispensable prerequisite, namely, the evidence must show the crime and the guilt of the accused beyond reasonable doubt.

One government can hardly be expected to surrender its citizens on substantial proof of guilt, if the other government refuses to do so simply for want of technical proof.

It is hoped that the conference suggested may result in a mutually satisfactory understanding of the two Governments as to the working of Articles VIII and X and of Article IV of the treaty. Accept, etc.

JOHN HAY.

C

Report of a conference between the Mexican Ambassador and the Solicitor for the Department of State.

At 10 o'clock a. m. on the 25th of January, 1900, the Mexican Ambassador appeared at the office of Mr. William L. Penfield, Solicitor for the Department of State, for the purpose of holding with him a conference, which His Excellency John Hay deemed expedient in order to agree on certain fixed rules that might facilitate the practical application of some articles of the extradition treaty in force between Mexico and the United States, owing to certain differences of opinion between the two contracting parties which had arisen in recent extradition cases presented by the former and the latter nation, respectively.

The conference having commenced and the points of discussion having been determined, the same being comprised in Article IV, paragraph 3 of Article VIII, and Article X of the treaty, Mr. Penfield expressed the desire to know whether in all cases of homicide it was necessary, in conformity with the laws of Mexico, in order to proceed with the arrest and commitment for trial of a defendant, to establish the existence of the corpus delicti by means of technical proof of the crime, as might be inferred from the decision rendered by the Mexican Government on November 15, 1899, when it denied the demand for the extradition of Leonardo Gonzales; whether such proof can be substituted by other proof. when it is impossible or difficult to obtain expert testimony; and whether if the extradition, once denied through lack of proof, might be granted afterwards upon presentation of perfected proof. He made reference to said Gonzales case and remarked that although the proofs submitted when that extradition was demanded might be considered insufficient, later on other proofs had been

adduced, consisting of the testimony of eyewitnesses, which strengthened the first proof submitted; and he stated that the impression the people and some State officer of Texas had with reference to said decision was to the effect that the fact that Leonardo Gonzales was a Mexican had had a great deal to do in the way such decision was rendered, although the United States Government had delivered up Mattie Rich, an American citizen, to the Mexican authorities, thereby establishing a precedent which he hoped would be followed by the latter.

Mr. Azpiroz replied in the following terms:

"The extradition of Leonardo Gonzales was refused solely on the ground that no sufficient proofs had been presented as to the existence of the corpus delicti to the Mexican Government. It does not appear that the fact that the defendant was a Mexican citizen had, directly or indirectly, any influence in the decision.

"It is to be presumed that the Mexican Government would have been willing to grant the extradition by availing itself of the discretional power that the treaty between Mexico and the United States of February 22, 1899, gives to both of the high contracting parties to deliver up its own citizens, had the existence of the corpus delicti of the homicide charged to Gonzales been proved, in view of the desire it has to put into practical operation the ends that both Governments had contemplated when they entered into that treaty, and of the example recently given by the United States when it delivered up Mattie Rich. The Mexican Government, however, was not able to follow this precedent in the Gonzales case, because the facts in the latter case were different from those in the former, and had, of course, to lead to different results. As a matter of fact, the corpus delicti in the case of Mrs. Rich had been proved in conformity with the laws of Texas, and the only thing left for the discretionary decision of this Government was whether it should or should not surrender her, owing to her citizenship; whilst in the case of Gonzales there was wanting sufficient proof of the corpus delicti, which was indispensable for his arrest and commitment for trial, in the supposition that the crime imputed to him had been committed in Mexico, since the treaty itself, in its Article III, paragraph 1, prohibits the delivery of the accused in such a case.

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"The proof of the guilt of Leonardo Gonzales, in order to justify his arrest and commitment for trial, had to conform to the laws of the State of Coahuila, where the defendant was found, and to to the federal law on extradition approved May 19, 1897, which should be complied with in everything not otherwise provided for by the treaty. According to the code of penal procedure of Coahuila [a copy of the articles relative to the matter under discussion, together with an English translation, having been delivered by Mr. Azpíroz to Mr. Penfield], which is substantially on this point the same as the laws of criminal procedure in force in the other States, in the Federal District, in the Territories of the Me tican Union, 'the basis for a criminal proceeding is the proof of the existence of an act or that of an omission, which the law considers to be a delict; without such proof no further proceedings ca. be had.'

"In cases of homicide proof must be presented of the fact that one person had been killed by another, and furthermore there must be proof that some individual has been the real or at least the suspected slayer, so that he may be arrested and committed tor trial for that crime.

"The law indeed requires, in order that there may be sufficient proof of the corpus delicti, that an autopsy of the corpse may be had, if that is possible; but if it could not be done, secondary proof may be produced, although even then the law requires that such proof may be passed upon by experts; and it is only when it is absolutely impossible to obtain the opinion of experts that it requires that such proof may be substituted by the testimony of witnesses who may have seen the corpse and the hurts, or that in some other way may know the facts regarding the crime, stating the circumstances which are indispensable to produce the certainty, or a great probability, that a homicide has been committed, and at least a suspicion as to who may have caused it.

"In fine, the documents that must be furnished with the requisition (for extradition) must prove the existence of the corpus delicti and furnish evidence of the identity and at least presumptions of the guilt of the person whose extradition is demanded, in such a manner that his arrest and prosecution might be ordered, in conformity with the laws of the Republic, had he committed the offense within its territory.

"Since the local law establishes the testimony of experts as direct evidence, and that of simple witnesses as secondary, it is evident that secondary evidence is not sufficient until it is shown in some way that it was impossible to obtain direct evidence.

"The foregoing prescriptions of Mexican law in criminal procedure are substantially in accord with the common law that generally is enforced by the courts of the United States of America. "It happens very often that the place where the corpse should be found is not known, when such corpse has been destroyed or its exhumation is unpracticable, or there is no surgeon to make the autopsy; but it is scarcely to be supposed that there could be any place in the United States where no physician, or at least a practitioner without diploma, might be found. Nevertheless, the laws of Mexico even provide for such a remote case, and lay down easy and reasonable rules for the substitution of expert testimony. Whenever these prescriptions are complied with, as well as the other requisites established in the treaty with the United States for the extradition of fugitives from justice of this country, the Mexican authorities who are required under said treaty to decide extradition cases will give their decisions bona fide, guiding themselves by the desire to facilitate the trial of criminals by competent courts, the fact that the accused is a Mexican citizen not being sufficient inducement to make them deviate from that purpose."

The Ambassador added:

"I find no legal objection against the presentation of the demand for extradition of a defendant a second time, if the proof that should accompany it, and owing to whose deficiency it was rejected, is perfected. In the special case of Leonardo Gonzales other testimony was added to that which accompanied the demand for extradition, but only after such demand had been denied, so that the Mexican Government did not even have the opportunity to know it when it rendered its decision."

Mr. Penfield inquired whether the Mexican Government would grant the extradition of Gonzales upon presentation of the new testimony which served to fortify that formerly given, in case that it should be sent with a new demand from the governor of Texas. The Ambassador answered that in his personal opinion, formed upon examination of the case, the new proof would not be consid