"We may here refer to a case of some notoriety which recently occurred in this country, which shows that the Executive, in the interpretation of Extradition Treaties, is not controlled by the action of the Courts, and that even when on an appeal to a judge from the Commissioner's decision on habeas corpus, where the Court sustained the Commissioner's decision, the judgment is not binding on the President. I refer to the case of Vogt, who was arrested here on application of the Minister of Germany for an offence committed in Belgium. The judge sustained the Commissioner's interpretation of the Extradition Treaty between the United States and Prussia, that the terms, crimes committed within the jurisdiction of either party,' gave to Prussia a right to demand the extradition of one of her subjects, for an offence committed in a country foreign to the United States and Prussia, because, according to the Prussian law, he might be tried for the offence in Prussia. The President, however, disregarded the decision of the Court, and refused to surrender the prisoner to the German authorities.

Vogt was afterwards discharged on a writ of habeas corpus, but was re-arrested at the demand of the Belgian minister, a Treaty of Extradition having been in the meantime made by the United States with Belgium. In deciding on a writ of habeas corpus, in which was involved the conformity of the documents, on which the arrest was made, with the treaty, the previous proceedings under the Prussian treaty were then referred to. The Court, in discharging the writ, said: 'The language of this treaty with Prussia implies that if the examining magistrate deems the evidence sufficient to sustain the charge, and so certifies to the President, a warrant of surrender must issue, much more strongly than does the language of the treaty with Belgium. Yet, in the case of this very prisoner, when his surrender was asked under the treaty with Prussia, for the same alleged offences of murder and arson that are involved in the present case, after the examining Commissioner had committed him for extradition, and this Court had on writs of habeas corpus and certiorari held the commitment to be legal, and the proceedings had been certified to the President, the President refused to issue a warrant of surrender (in re Stupp, alias Vogt, Blatchford's C. C. R., vol. xi. p. 124). In that case his refusal was based upon the construction of the treaty. It is not to be doubted that he might, under like circumstances, properly base his refusal upon want of sufficient evidence of criminality. His refusal was in the exercise of an undoubted right. Whether he would have authority to order and enforce the surrender of a fugitive, after his discharge on habeas corpus subsequently to his commitment by a magistrate for surrender, it is not necessary now to consider. Action, such as was lawfully had in the case of Stupp, shows that the decision of a Court on habeas corpus in an extradition case, that a prisoner is lawfully held, is not binding on the Executive in reference to the same question of law. Nor could it be binding on

the Executive if, on the writ, the prisoner were declared to be lawfully held on the facts and merits of the case' (Blatchford's C. Č. R., vol. xii. p. 516).

"As it will appear, Extradition Treaties of the character of those that now exist, applying to the ordinary crimes and even extended to misdemeanours, are of very recent origin. Billot, in his Traité sur l'Extradition,' tells us that the term 'extradition' was never used in any public Act before the decree of 19th February 1791, nor are we aware, though the word is applied to them by modern text writers, that it was used in the English version of any British treaty or in any law before the Extradition Act of 1870.

"Though treaties of surrenders are referred to in ancient times, they were not treaties for the administration of ordinary criminal jurisprudence, but related to political matters as affecting the security of the State, involving high treason and sometimes other felonies. In the great collection of Barbeyrac, which includes the whole period from 1496 B.C. to Charlemagne, we find enumerated treaties to deliver up obnoxious persons, in connection with treaties in relation to persons who had been banished, or who were outlaws escaped from one country to another (Dumont Corps Diplomatique Supplément,' tome 1, part 1, préf. p. 10, 12; Histoire des anciens traités depuis les temps les plus reculés jusqua l'Empereur Charlemagne, par Barbeyrac,' pp. 1, 474).

Treaties were made by Charles II. with Denmark in 1661, and with the States General in 1662, for the rendition of the regicides. "The arrangements made at the Congress of Vienna for the new territorial delimitation of the Continent, led to conventions for the surrender of political refugees between Russia, Prussia, and Austria as late as 1834. In 1849 a demand was made by Russia and Austria on Turkey for the delivery up of the Poles and Hungarians who had escaped into the Sultan's dominions, and, on his refusal, Russia and Austria suspended all diplomatic intercourse with the Porte.

"In reference to the refugees here mentioned, Lord Palmerston, in a despatch of October 6, 1849, to the British Ministers at Vienna and St. Petersburg, said: If there is one rule more than another that has been observed in modern times by independent States, both great and small, of the civilized world, it is the rule not to deliver up political refugees. The laws of hospitality, the dictates of humanity, the general feelings of mankind, forbid such surrenders, and any independent Government, which, by its own free-will, was to make any such surrender, would be universally and deservedly stigmatized and dishonoured, unless (he adds) a State is bound to extradition by the positive obligations of a treaty; but such treaty engagements are few, if, indeed, any such exist' (Lawrence's 'Wheat.' 1863, p. 245).

"

It is here to be noted that the principle of Extradition Treaties does not apply to the transfer of an accused person from one part of

a State to another having a common supreme Government; therefore nothing is to be deduced from the traditions of the civil law. The Roman Empire had one supreme ruler, and the grounds on which remission to the forum delicti was founded, rested upon the imperial supremacy. 'It would thus seem,' said Twiss, that in either case, whether the criminal was tried in the place where he was found, or sent back for trial to the place where the crime had been committed, the authority under which the trial or the remission of the criminal took place was one and the same, namely, the paramount authority of the emperor' (Twiss's Law of Nations in Time of Peace,' p. 345).

"In England the Courts have refused to discharge prisoners arrested for crime in Scotland or Ireland, or the colonies, and before our Revolution there was a system of rendition between the different American colonies, the principle of which is embodied in the present constitutional provision. The case is the same now between the Swiss cantons, and it existed among the States of the German Confederation, though at this time a penal law for all the empire leaves scarcely room for any rule of extradition. And in this respect also Norway is not considered a foreign country as regards Sweden (Revue de Droit International, 1870, p. 179, note). "We find in Lord Coke's Third Institute' the strongest denunciation against the surrender of either citizens or strangers to foreign States to be punished according to their laws, with or without treaty. He instances no adjudged case, but cites some which show how strong in his time, both in England and on the Continent, was the feeling that all kingdoms were free to fugitives, and that it was the duty of kings to defend every one of the liberties of their own kingdoms, and therefore to protect them' (3 Institutes,' 180). England holds, and always has held, as a great principle, the doctrine of refusing to surrender those who may have taken refuge in her dominions. The recent deviations from this principle,' says Phillimore, are bounded by the letter of the treaty which constitutes the particular case of exception' (Phillimore, International Law,' vol. i. p. 456).

"In the United States there has never been but one instance of the assumption of the power by the President to extradite, in the absence of any treaty, a supposed fugitive from justice on the application of a foreign Government, and that case is not likely to be hereafter cited as a precedent. Arguelles, a governor of a district in Cuba, was, in 1864, under the authority assumed by Mr. Seward, then Secretary of State, delivered up to the Spanish Minister, under charge of having violated the laws of Spain respecting the slave-trade, and was hurried out of the country without any opportunity of testing the validity of the Act. It is to be remembered, however, that that happened at a period when the people of the North were specially sensitive as to anything which might affect the African race, and it was at the time when Mr.

Seward boasted, regardless of all the provisions which supposed to exist in favour of civil liberty, that by the ringing of his little bell he could instantaneously commit to prison any individual, citizen or foreigner, in any part of the United States, without assigning any reason.

"The course pursued in Arguelles' case has not been sustained by the present administration, as will appear from the following extract of a letter of July 28, 1873, of Mr. Bancroft Davis, Acting Secretary of State, to the Belgian Minister, Mr. Delfosse:-' The authority of the Executive to abridge personal liberty within the jurisdiction of the United States, and to surrender a fugitive from justice in order that he may be taken away from their jurisdiction, is derived from the statutes of Congress, which confer that power only in cases where the United States are bound by treaty to surrender such fugitives, and have a reciprocal right to claim similar surrender from another power. I am, therefore, constrained to decline to comply with your request for the surrender of Carl Vogt' (Papers relating to the Foreign Relations of the United States 1873, vol. i. p. 81).

"At the time of the Declaration of Independence, England had no treaty with any foreign power about fugitives from justice. The first American Secretary of State, Mr. Jefferson, conceived that there were insuperable objections to their surrender, not only for the reasons to which I have alluded, founded upon our political institutions, but on account of the difference of laws and the manner in which they were administered. When he drew up, in 1792, a project to regulate the relations between the United States and the adjoining English and Spanish possessions, he confined the surrender for crime simply to the case of murder, and, as a preliminary measure, besides evidence from the foreign country, which might be in writing, it was required that the proceedings should be the same as for cases of murder committed on the high seas, and that no person should be surrendered until a true bill' should have been found by the grand jury.

"These negotiations had no result, but an article for the surrender of persons charged with the crime of murder or forgery was inserted in the treaty of 1794, known as Jay's Treaty. Both of these crimes were then punished with death; the latter, indeed, as the well-known case of Dr. Dodd shows, being deemed by the law of England more heinous than murder, and being never condoned. This appears to have been made without any special instructions from our Government, at least I can find none among the diplomatic papers accessible to me. It is in these words: Art. XXVII. It is further agreed that His Majesty and the United States, on mutual requisitions by them respectively, or by their respective ministers or officers authorized to make the same, will deliver up to justice all persons who, being charged with murder or forgery committed within the jurisdiction of

either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the offence had been there committed. The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition and receive the fugitive.'

"The Supreme Court of the United States has held that a treaty is in its nature a contract between two nations, not a legislative act, and does not, generally, effect of itself the object to be accomplished, but is carried into execution by the legislative power of the respective parties to the instrument. In the United States, the Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in Courts of justice as equivalent to an Act of the Legislature, whenever it operates of itself, without any legislative provision. But, when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department, and then the Legislature must execute the contract before it can become a rule for the Court (Peters' Rep., vol. ii. p. 314; Foster et al. v. Neilson, ib., vol. ii. p. 737; United States v. Arredondo, Lawrence's Wheat.' 1863, p. 458).

"It would seem that the extradition article of the treaty of 1794 did not execute itself, but required, as in case of treaties giving jurisdiction to foreign consuls over merchant ships and their crews, an Act of Congress, which was never passed, to put it into effect. Moreover, it is a recognized principle of the English Constitution that no such treaty can go into effect without Act of Parliament, and, as it could scarcely be contended that the treaty could be binding upon us, without being obligatory on the other party, it may well be contended that it was never binding on either.

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"The only case that arose under this treaty was that of Robbins alias Nash, in 1799, of which the following summary is given in Phillimore: A citizen of the North American United States, who had committed murder within the jurisdiction of England, that is, upon board a British ship on the high seas, was delivered up to the British by the American authorities, although it was strongly contended that the article of the treaty was contrary to the constitution of the United States; that the treaty could only relate to foreigners; that, the crime having been committed on the high seas, the Courts of the United States had competent jurisdiction; and that a grand jury ought to make inquest before a party was sent away for trial. All these objections were overruled, and the prisoner delivered up to the British consul' (Phillimore's International Law,' vol. i. p. 460).

"It is somewhat extraordinary that this case, which was one