The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1896-04-03
T. MALLORY'S DEFALCATION.
BE Cannot be EXtradited to Answer fol
His Crime.
Letters Received by the Governor From
Secretary of State 0lney and
Senator Perkins.

Governor Budd has received the fol-
lowing letters from Secretary or state
Olneys and Senator Perkins in answer
t. his message asking that the United
States Government would make a re-
quest of the japanese Government Tor
the extradition of Frank Mallory, the
Suffer Club defaulter:
Hon. James H. Budd, Governor of
California, Sacramento-My Dear Sir:
1 inclose herewith copy OF a letter
from the Secretary of State explaining
the position of the State Department in
the matter of asking for the detention
of fugitives from justice in foreign
country. 1t will be seen that the letter
gives the reasons why the request in the
case of Mallory could not be granted.
1 made personal application to the
State Department as soon as l received
the Geographic request from Mr.. Ever
son, and was at first told that the re-
quest for detention would be made, and
Sc informed him. After examining the
condition of the treaty more at length,
however, 1 was notified that the request
could not be granted, and the inclosed
letter was sent in explanation. Yours
truly, GEORGE c. PERKINS,
United States Senator
WASHINGTON, March 20, 1896.
Hon. George C. Perkins, United States
Senate-Sir: 1 have the honor to ac-
knowledge the receipt of your telegram
dated the 10Th inst, in the following
language:
Il am in receipt or a telegram from
California asking if in view of the fact
extradition not covered by treaty in case
OF Mallory, alias Anderson, that if con-
silent with your views, they respect
fully request you to ask japanese Gov
eminent retain fugitive as act of cour-
lesy."
The Governor of California has in
formed the department that he desires
the eXtradition of this fugitive upon
the charge of embezzlement of funds
belonging to the Suffer Club. The ex-
tradition treaty between the United
States and Japan, in which country the
fugitive has sought asylum, provides
Tor extradition in cases of 'embezzle-
ment or criminal malversation of the
public funds, committed within the
jurisdiction of either party, by public
officers or depositaries." Embezzlement
by person holding the funds of club
or other organization which is not part
OF the Governmental machinery is not a.
treaty offense, and the surrender of a
fugitive upon that charge cannot be de-
manded under the treaty. Under the
Constitution and laws of the United
states the Executive is not authorized
To surrender fugitives except in pursu-
ance of the terms of a treaty, and the
absence of authority to grant extradi-
ton save in virtue of treaties requires
the restriction of demands for extradi-
ton to treaty offenses. In only single
instance has the United States request
&c of another Government with which it
lad an extradition treaty the surrender
of a fugitive for an offense not therein
specified. There is an unbroken line of
precedents dating back as far as 1912,
establishing the rule that extradition
will be sought only III pursuance OF the
treaty, where there is one. The in
stance of departure from the rule oc-
CURED last year when a fugitive who
had committed a fragrant offense
against the Federal Government (break-
ing into a postoffice) sought asylum in
Belgium His offense was not within
the terms of our tradition treaty with
Belgium but in view of the great i'm
portance attached by the Postmaster
General to the reclamatio and punish
ment of this fugitive, / was induced to
request the surrender from the Belgian
Government as special exception to
the rule and as a matter of International
courtesy. The Belgian Government de-
clined to depart from the provisions of
the treaty, and refused to surrender
the fugitive There is no reason to
doubt that the Government of Japan
would refuse to surrender the man now
sought to he extradited. / regret my
inability to comply with your request
but adherence to the international rule
and to the established practice of this
Government is regarded as mandatory
upon the Executive. beg that you will
acquaint the Governor of California
with this decision and with the reasons
upon which it is based have the
honor to be, sir, your obedient servant,
RICHARD OLNEY, Secretary.
1t is evident, then, that so long as
Mallory remains in Japan he is safe
from being sent back here to answer for
bis defalcation.