States or Territories, or through such chief civil or judicial authority of the districts or counties bordering on the frontier as may for this purpose be duly authorized by the said chief civil authority of the said frontier States or Territories, or when, from any cause, the civil authority of such State or Territory shall be suspended, through the chief military officer in command of such State or Territory.". Unless the conditions of arrest under this section are strictly complied with, the parties arresting and carrying off the alleged fugitive may be chargeable with kidnapping. Mr. Bayard, Sec. of State, to Mr. Jackson, Aug. 23, 1886. MSS. Inst., Mex. When suits are brought against marshals of the United States for lawful acts done by them in the extradition of fugitives from justice, the President may authorize the employment of counsel in their behalf by the United States. 6 Op., 500, Cushing, 1854. When demand for a fugitive from justice is made under treaty stipu lation by any foreign Government, it is the duty of the United States to aid in relieving the case of any technical difficulties which may be interposed to defeat the ends of public justice, the object to be accomplished being alike interesting to both Governments, namely, the punishment of malefactors, who are the common enemies of all society. 7 Op., Cushing, 1855. It is incumbent upon the United States to provide a place of impris onment for persons detained for extradition at the instance of foreign Governments. 8 Op., 396, Cushing, 1857. A discharge by a district judge of a person apprehended as a fugitive from justice does not preclude his rearrest under the warrant of another judge, with a view to a re-examination of the case. 10 Op., 501, Coffey, 1863. Transit across a third country may be granted as a matter of comity. "With reference to your dispatch No. 148, of the 11th ultimo, reporting the request made by you of the Spanish Government, at the instance of General Starring, for permission to have Charles W. Angell transported in custody across the territory of Spain, and the compliance of the Spanish Government therewith, I have to instruct you to convey to the Spanish minister for foreign affairs the sincere satisfaction with which this Government has learned of that act of courtesy. "The question of the right of transit of an extradited criminal in custody across the territory of a foreign state, is now attracting to some extent the notice of this Department. It is presumed that, where the offender is regularly extradited in pursuance of a treaty, and the demanding state has a treaty of extradition with the state across whose S. Mis. 162-VOL. II-52 817 territory transit is sought, it will be sufficient that the crime for which extradition is granted shall also be among those in the treaty with the country of transit, and that the warrant of surrender be exhibited. "If the procedure in this respect should be different in Spain, I will thank you to advise me." Mr. Evarts, Sec. of State, to Mr. Lowell, Mar. 5, 1879. MSS. Inst., Spain; "The conveyance of an extradited criminal from the country whence he is surrendered to that which which reclaims him, across the territory of an intervening state is a common occurrence, notwithstanding that no offense has been committed and no legal formality of arrest followed in the jurisdiction of the state through which he may pass, and this is done not in pursuance of the stipulations of treaties or the provisions of domestic law, but as a recognition of the just effect of the laws and treaties of foreign states in matters within their competence, which recognition pertains to the sovereignty of an independent state, and is exercised as an act of international comity." Mr. Evarts, Sec. of State, to Mr. Dichman, Nov. 12, 1878. MSS. Inst., Colombia. "On the other hand, in the interest of a full understanding of the matter on its merits, this Government is prepared to admit frankly that, in conveying the extradited prisoner across the territory of Colombia without the previous consent of the Government having been asked and given, it prejudiced any right it might have had to seek the exemption of the prisoner from the operation of the local law within the jurisdiction of which he was brought under the stress of circumstances. Had such consent been asked, however, it is conceived that the Republic of Colombia would have felt constrained to grant it, in the same manner as is done in like cases by other states whose constitutional codes are as mindful of individual rights as is that of Colombia, independently of the peculiar conditions under which official transit across the Isthmus rests by reason of the neutrality and freedom guaranteed by treaty." Ibid. "It is well known that almost always a civil officer is sent abroad to receive a prisoner whose extradition may be demanded. Usually lie adopts sufficient precautions to prevent the escape of the prisoner after he shall have received him into custody. The same course would probably be sufficient for carrying prisoners across the Isthmus of Panama.” Mr. Evarts, Sec. of State, to Mr. Dichman, May 12, 1879. MSS. Inst., Colombia. X. EVIDENCE ON WHICH PROCESS WILL BE GRANTED. § 277. Under the extradition treaty with Great Britain, "the criminality of the act charged should be judged of by the laws of the country within whose jurisdiction the act was perpetrated, but the evidence on which the fugitive should be delivered up to justice should be the laws of the place where he shall be found.” Mr. Calhoun, Sec. of State, to Mr. Everett, Aug. 7, 1844. MSS. Inst., Gr. Brit. ; same to same, Jan. 28, 1845. Under the French-American extradition convention the delivery of fugitives shall be made "only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive or the person of the accused shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed." This language "evidently involves a question of evidence, which, in all cases, so far as the United States are concerned, belongs to the judicial tribunals of the country." "What evidence is necessary in order to authorize an arrest or commitment, depends upon the laws of the state or place where the criminal may be found.” Mr. Calhoun, Sec. of State, to Mr. Pageot, Dec. 4, 1844. MSS. Notes, France. Metzger's case. See Mr. Buchanan, Sec. of State, to Mr. Pageot, Nov. 3, 1847, Nov. 10, 1847. MSS. Notes, France. "I have the honor to acknowledge the reception of your note of the 5th instant, making inquiries respecting a certain stipulation supposed to have been inserted in several extradition treaties which have been recently concluded by this Government. "It is believed that you are under a misapprehension in supposing that the provision, as cited in your note, has been inserted in many of the treaties of extradition which this Government has entered into with other powers, or that it has been inserted in any of those recently entered into. I am under the impression that it is to be found in only three of the treaties of extradition concluded by the United States, and in none concluded within the last six years. No question has been raised by either of the Governments with whom treaties have been entered into containing the stipulation, cited in your note, as to its import. I abstain, therefore, from speculating in the abstract upon provisions of detail in treaties of extradition existing between the United States and other countries. It will, as I hope, meet the object of your inquiry on this point to say that, in every treaty of extradition, the United States insists that it can be required to surrender a fugitive criminal only upon such evidence of criminality as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial if the crime had there been committed. "The second question which you propose is, what may have been the reason why the stipulation which you cite, and which you erroneously think is found in all extradition treaties of this Government concluded since August 21, 1857, was not inserted in the projected treaty signed, but not exchanged, between the Netherlands and the United States in 1857. Governor Marcy and General Cass, who were, pending the nego tiations on this question, the Secretaries of State, and under whose directions they were conducted, have been dead for several years, and it does not appear from the correspondence in this Department that the provision cited by you was at any time under consideration. "The negotiations appear to have been conducted at The Hague; and unless the records of the ministry there, or possibly the recollection of the distinguished gentlemen who conducted the negotiations on the part of the Netherlands (if Mr. Van Hall be still living) can furnish the answer to the question why the stipulation to which they did agree was introduced instead of one which does not appear to have been proposed, I shall have to regret the inability of this Government to aid in the solution of the question which you raise. "In reply to your third question, 'Whether there exists in the United States any uniform criminal procedure, that is to say, whether the same laws and rules are in force in relation to criminal procedure in all the States, or whether the laws concerning such procedure are different in the different States,' I have to say that the criminal code of the United States applies only to offenses defined by the General Government, or committed within its exclusive jurisdiction, or upon the high seas, or some navigable water, and that each State establishes and regulates its own criminal procedure, as well with respect to the definitions of crimes as to the mode of procedure against criminals and the manner and extent of punishment." Mr. Fish, Sec. of State, to Mr. Westenberg, Nov. 12, 1873. MSS. Notes, Belgium; For. Rel., 1873. "In cases of extradition, it is the practice to furnish the parties authorized to receive the fugitives into custody, with the President's warrant for that purpose, and a duly authenticated copy of the indictment and other necessary papers in each case, but in this instance it has been thought better, in order to facilitate matters, to address the documents which will be required in the case to the care of the legation, where they can be readily obtained by the aforementioned gentlemen on their arrival in London. A sealed envelope is therefore inclosed herewith, containing the President's warrant, and an authenticated copy of the indictment and other necessary papers, together with a number of photographs of Cooper. The envelope you will deliver to the proper persons upon their application to you." Mr. F. W. Seward, Acting Sec. of State, to Mr. Pierrepont, Oct. 30, 1877. MSS. A fugitive charged, under the treaty with Great Britain, with the commission of murder in Scotland, apprehended in the United States and examined before a commissioner, and by him certified to be probably guilty on the evidence adduced, should be delivered up to justice if the evidence upon which the application is founded be such as, according to the laws of the place where the fugitive shall be found, would justify his or her commitment for trial if the crime had there been com- 4 Op., 201, Nelson, 1843. The question of holding the prisoner for further examination is one 6 Op., 91, Cushing, 1853. The sufficiency of the evidence is a question for the courts, without 6 Op., 217, Cushing, 1853. The United States will not demand from Great Britain the extradi- 6 Op., 485, Cushing, 1854. The term "public officers" in the treaty of 1843 between the United It is immaterial whether the person charged left the demanding coun- 8 Op., 306, Cushing, 1857. To prove desertion the ship's roll must be exhibited, containing the 9 Op., 96, Black, 1857. It is not necessary that the proceedings be either carried on or ap- Attorneys of the United States are not required to appear for for- 9 Op., 497, Black, 1860. In order to be admissible at the hearing, the certificate, under the act 10 Op., 501, Coffey, 1863. See Farez, in re, 7 Blatch., 345. |