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cases in which, and the conditions upon which, ex

tradition will be granted. This is the only basis of BY SAMUEL T. SPEAR, D. D.

such extradition acknowledged by the United States. THE President of the United States, subject to the The crimes specified in the twenty-four extradi

advice and consent of the Senate given by at tion stipulations contained in the volume of Public least two-thirds of the Senators present, is authori- | Treaties, are the following:-1. Arson. 2. Assassized to make treaties with foreign nations. To Con- nation. 3. Assault with intent to commit murder. gress is delegated the power of making “all laws 4. Burglary. 5. Circulation or fabrication of counwhich shall be necessary and proper for carrying” terfeit money. 6. Counterfeiting public bonds, these treaties into execution. These two grants of bank bills, securities, stamps, dies, seals, and marks power are the constitutional sources of all the of state and administrative authority, etc. 7. Emtreaties and all the laws of the United States relat- bezzlement of the public money. 8. Embezzleing to the international extradition of fugitivement by public officers. 9. Embezzlement by persons criminals.

hired or salaried. 10. The utterance of forged The volume of Public Treaties, published under paper. 11. Forgery. 12. Infanticide. 13. Kidthe authority of Congress in 1875, contains the napping. 14. Larceny of cattle or other goods treaties of the United States in force on the 1st of and chattels of the value of twenty-five dollars or December, 1873; and of these, twenty-four make more, found only in the treaty with Mexico. 15. provision for international extradition. Stated in Mutiny. 16. Murder. 17. Mutilation, 18. Parthe order of their respective dates, and designated ricide. 19. Piracy. 20. Poisoning. 21. Rape. 22. by the foreign nations with which they were made, Robbery. they are the following:-Great Britain, August 9th, These crimes are designated by titles known and 1842; France, November, 9th, 1843, with a supple- acknowledged, as between the contracting parties mentary article, February 24th, 1845, and another

to mean the same offenses, or they are made the article, February 10th, 1858; Hawaiian Islands, De subjects of special description. When the designacember 20th, 1849; Swiss Confederation, November tion is simply by titles, and these titles are fur25th, 1850; Prussia and other States, June 16th, nished by different languages, titles that are equiva1852 ; Bremen, September 6th, 1853 ; Bavaria, lents in meaning are used. These names mean September 12th, 1853; Wurtemberg, Oct. 13th, things; and neither of the contracting parties can, 1853; Mecklenburg-Schwerin, November 26th, by local legislation, change the nature and charac1853 ; Oldenburg, December 30, 1853; Schaum- ter of the crimes that are the subjects of the stipuburg Lippe, June 7th, 1854 ; Two Sicilies, lation, and thus in effect create new ones, and then October 1st, 1855; Hanover, January 18th, 1855 ; claim extradition for these new crimes on the mere Austria, July 3d, 1856; Baden, January 30th, 1857; basis of names. Sometimes, for the purpose of Sweden and Norway, March 21st, 1860; Venezuela, greater certainty, extradition crimes are specifically August 27th, 1860; Mexico, December 11th, 1861; defined. Thus, in the supplemental article of FebHayti, November 3d, 1864; Dominican Republic, ruary 24th, 1845, added to the treaty of 1843 with February 8th, 1867; Italy, March 23d, 1868, with an France, bnrglary is placed in the extradition list, additional article, January 21st, 1869; Nicaragua, defined to be “breaking and entering by night into June 20th, 1870; Orange Free State, December 22d, the mansion-house of another with intent to com1871; and Ecuador, June 28th, 1872.

mit felony.” Should either goverment, for its own To these are to be added the extradition stipula- purposes, see fit to establish a different grade of buigtion of May 23d, 1870, with San Salvador; that of lary, the offense would not be the one defined in September 12th, 1870, with Peru; that of March the treaty, and, hence, would not, under the 19th, 1874, with Belgium, and that of August 11th, treaty, be an extradition crime. It was on this 1874, with the Ottoman Empire.

ground that Judge Fancher, in Lagrave's Case, 14 The one common purpose of all these stipulations Abb. Pr. R. N. S. 333, said that the crime of burgis to establish, as between the contracting parties, lary, in the sense meant in the treaty with France, the reciprocal right, upon the terms specified, to "refers to the common law offense of burglary,” demand and impose a corresponding obligation to and that the treaty does not “provide for the dedeliver fugitive criminals who, having committed mand and extradition of a fugitive for our statutory offenses within the territorial jurisdiction of the offense of burglary in the third degree.” The proone, have fled from justice and sought refuge ceedings in this case he held to be “unauthorized within that of the other. How far a political sov- and illegal,” because the crime charged was not the ereignty shall concede the right and assume the one specified in the treaty. obligation is always a question for its own determi- The general rule of evidence adopted in the exnation. The modern practice of nations is to settle tradition treaties of the United States is, that the the point by treaties beforehand, in which they charge of criminality on which the demand for depledge their faith to each other, and define the livery is based, must be supported by such evidence as would justify the apprehension and commitment treaties, with the exception of five, relate simply to for trial of the person accused, if the alleged offense fugitives charged with crime and demanded for had been committed in the country on which the trial; and in these five express provision is made demand is made. The laws of that country, and that extradition shall extend also to fugitives connot those of the one making the demand, furnish victed of crime, with the requirement that, in such this rule; and in this respect each government ad- cases, an authenticated copy of the sentence of the ministers its own laws without reference to those of court shall be the evidence of the fact. the other. The obligation of delivery is qualified This outline sketch presents the general features by this rule, since it is a part of the contract. Many and characteristics of the extradition treaties of the of the treaties of the United States, for the purpose

United States. Some things are common to them of applying the rule, expressly authorize “the all, and others are the peculiarities of particular judges and other magistrates” of the contracting treaties. governments to issue their warrants for the appre- The first of these stipulations is the one found in hension of accused persons, to examine into the the twenty-seventh article of the treaty of 1794 question of their alleged criminality, and, if satis- with Great Britain, which, by the next article, was fied that the evidence is sufficient to detain them limited to the period of twelve years, and hence for trial, to certify this fact to “the proper execu- ceased to be operative after 1806. The article reads tive authority.” Other treaties give the rule of

as follows: evidence, but contain no such provision for its ap- “It is further agreed that His Majesty and the plication, and hence leave the matter to be deter- United States, on mutual requisitions, by them remined by legislation in each country.

spectively, or by their respective ministers or officers The actual delivery of fugitive criminals is, in all

authorized to make the same, will deliver up to jus

tice all persons who, being charged with murder or these treaties, to be preceded by a demand of one

forgery, committed within the jurisdiction of either, government upon the other, made by ministers or shall seek an asylum within any of the countries of officers duly authorized. The stipulation is to de- the other, provided that this shall only be done on liver such fugitives, “ upon mutual requisitions,” in

such evidence of criminality as, according to the

laws of the place where the fugitive or person so the cases and upon the evidence specified. Who charged shall be found, would justify his apprehenshall make this delivery? Ten of these treaties ex- sion and commitment for trial, if the offense had pressly assign this duty to the executive authority there been committed. The expense of such appre

hension and delivery shall be borne and defrayed of the respective governments; twelve of them do

by those who make the requisition and receive the so, not expressly, but by obvious implication; and

fugitive." in two of them there is no mention of the authority by which the delivery shall be made.

This contract specified murder and forgery as the There are also special qualifications, found in crimes for which extradition might be demanded. some of these treaties, which limit their application It designated the agency through which the demand as to crimes and persons. Fourteen of them ex- might be made, and gave the rule of evidence as to pressly exclude political offenses from the list of the criminality of the accused person, and, hence, extradition crimes, with the exception that, in the as to the obligation of compliance with the demand. treaty with the Two Sicilies, it is provided that such It pledged the good faith of each government to offenses shall be excluded “unless the political couform its policy to the terms of the stipulation, offender shall also have been guilty of some one of It was upon its face a contract that contemplated the crimes enumerated in article twenty-two." action in futuro, and, hence, was an executory conEight of them declare that the stipulation shall not tract, and not one executed by the mere ratification apply to offenses committed before the date of the of the treaty. It, however, omitted to provide, in treaties. One of them provides that no surrendered express terms, any agency or authority for making person shall be tried for any offense committed pre- the delivery of a fugitive criminal, or for applying viously to that for which extradition was demanded; the rule of evidence as to criminality; and Congress and two of them apply the same principle in respect never passed any law for carrying it into execution. to "any ordinary crime" committed before the one The only case which occurred under this treaty stated in the requisition. Fourteen of them exclude was that of Jonathan Robbins in 1799, a report of from extradition the citizens or subjects of the coun- which is given in Wharton's State Trials, pp. 392— try on which the demand is made; and sixteen pro- 457. Robbins, on suspicion of having been convide that, in cases in which the persons demanded cerned in the mutiny on board the British frigate have committed crimes within the jurisdiction of Hermione in 1791, was arrested in 1799 in Charlesthe country whose asylum they have sought, extra- town, South Carolina, and committed to prison, bedition may be deferred until after their acquittal or fore any demand for delivery was made by the punishment. Four of them declare that the extra- British Government. After he had been imprisoned dition stipulations shall not be affected by subse- for about six months, Judge Bee, United States quent treaties respecting naturalization. All these District Judge for that State, was informed by the

Secretary of State that a demand had been made to do, and not the less so because he was requested upon the President for his delivery as a fugitive by the latter to do it. The advice of the President criminal, and also notified that the President, if the given to a judge in hearing a habeas corpus case is evidence was sufficient to sustain the charge, advised

no basis for the exercise of power. and requested him to deliver the prisoner to "the Chief-Justice Marshall, in delivering the opinion Consul or other agent of Great Britain who shall of the Supreme Court of the United States in Foster appear to receive him.” Robbins was soon after v. Neilson, 2 Pet. 253, said, “Our Constitution brought before the District Court on habeas cor- declares a treaty to be the law of the land. It is pus, and Judge Bee, after hearing the case, or- consequently to be regarded in courts of justice as dered him to be surrendered “to the British Con- equivalent to an act of Congress, whenever it opesul, or such person or persons as he shall appoint to rates of itself without the aid of any legislative proreceive him.” He subsequently addressed a letter vision. But when the terms of the stipulation imto the Secretary of State, informing him of his port a contract, when either of the parties engages “compliance with the request of the President of to perform a particular act, the treaty addresses the United States," and saying that he judged the itself to the political, not the judicial department ; evidence against Robbins sufficient to sustain the and the legislature must execute the contract before charge on which he had been demanded.

it can become a rule for the court.” The same This case produced an intense excitement among

court reaffirmed this doctrine in the United States the people, and led to a warm discussion in the v. Arredondo 6 Pet. 691. House of Representatives. It was claimed by some The twenty-seventh article of the treaty of 1794 that the court had no jurisdiction to make the de- with Great Britain was a contract in which the parlivery, aud by others that the President could not ties mutually pledged their faith with respect to execute the stipulation until authorized to do so by action in futuro, but in which they made no provisan act of Congress. Mr. John Marshall, subsequently ion as to the agency for the delivery of fugitive Chief Justice of the Supreme Court of the United criminals. They simply agreed that the delivery States, was then a member of the House of Represent- should be made in the cases and circumstances atives; and, in the speech which he made on the sub-stated. The contract did not by its own terms exeject, he defended the action of the President, taking cute itself, and, hence, needed legislation to make the ground that, while the courts have no power " to it operative, and, hence, was not, in the absence of seize any individual and determine that he shall be the requisite legislation, “the law of the land " for adjudged by a foreign tribunal,” the President, be- courts. Courts, according to the principle laid ing charged with the duty of executing the laws, down in Foster v. Neilson, could exercise no power and a treaty being declared by the Constitution to under it until Congress should legislate for its exebe a law, had power to make the delivery in the

cution. absence of any legislation by Congress. The fact Was the article “the law of the land " for the in the case was that Judge Bee issued the order for President ? It certainly was not so in express delivery; and, according to the argument of Mr. terms. The President has power to make treaties. Marshall, he had no authority, as a judge, to do so. These treaties, if self-executing without the aid of legThe authority was with the President; and, as a islation, are laws of the land; yet it is not a constitumatter of fact, he did not exercise it. What he tional prerogative of his office to execute treaties, did was to advise and request the judge to make the any more than it is to execute the Constitution, exdelivery if the evidence was sufficient. In his letter cept as he is authorized to do so. Attorney-Genof May 21st, 1799, to the Secretary of State, he eral Wirt, in Sullivan's case, 1 Op. At. Gen. 509 said: “How far the President of the United States

said : “ The Constitution and the treaties and acts would be justifiable in directing the judge to deliver of Congress made under its authority, comprise the up the offender is not clear. I have no objection to whole of the President's powers.” In this case advise and request him to do it.”

there was no law of Congress, authorizing the PresiThis advice and request plainly conferred no dent to deliver fugitive criminals, and no provision authority upon Judge Bee, when hearing a case upon in the treaty giving the authority; and, according habeas corpus, and determining whether the prisoner to the doctrine stated in Foster v. Neilson, the extrawas lawfully restrained of his liberty. The argu- dition stipulation was not a law of the land" ment of Mr. Marshall, while it logically condemns because it was a contract which did not and could the action of Judge Bee, does not fit that of the not execute itself without legislation. It may have President. It claims for him a power which he did been the duty of Congress to supply the appropriate not exercise, but which he advised and requested legislation; but its failure to do so certainly did not Judge Bee to exercise. The delivery was a judicial add to the powers of the President. Legislative one, and was not officially the act of the President omissions are not a source of positive powers to any at all. The judge of a court did what, as Mr. Mar- department of the Government. shall asserted, the President only had the authority Our conclusion is, that the surrender of Robbins was without legal authority. The treaty gave Judge | red in 1845, before Congress had passed any extraBee no authority to make the surrender, and the dition law; and the view of Judge Woodbury was, President could give him none. The President that the treaty of 1842, in its terms and without any himself had no such authority; and if he had, he legislation for its execution, by clear implication, did not directly exercise it. It was stated, in the gave the President authority to make the delivery debate in the House of Representatives, that Presi- of fugitive criminals. Attorney-General Nelson, in dent Washington bad expressed strong doubts The Case of Christiana Cochrane, 4 Op. Att.-Gen. whether this part of the treaty of 1794 could be 201, adopted this construction, and advised the carried into effect without the action of Congress. President to make the surrender of the alleged

The next extradition stipulation of the United criminal. These two cases are the only ones that States is contained in the tenth article of the treaty occurred under the treaty prior to the act of Conof August 9th, 1842, with Great Britain, which progress providing for the execution of extradition vides as follows:

treaties; and in both no legislation was thought "It is agreed that the United States and Iler

necessary to give effect to the treaty. Britannic Majesty shall, upon mutual requisitions by

An attempted extradition under the treaty of them, or their ministers, officers or authorities, re- November 9th, 1843, with France, brought this spectively made, deliver up to justice all persons question distinctly before Congress; and the result who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or

was the enactment of a law in 1848 for carrying arson, or robbery, or forgery, or the utterance of

into execution all such treaties. The treaty with forged paper, committed within the jurisdiction of France expressly provided that the surrender, on either, shall seek an asylum, or shall be found within the part of the United States, “shall be made only the territories of the other: Provided that this

by authority of the executive thereof." It, howshall only be done upon such evidence of criminality as, according to the laws of the place where the

ever did not provide for any preliminary arrest and fugitive or person so charged shall be found, would examination by the magistrates of either country. justify his apprehension and commitment for trial, In 1847 a demand was made for the surrender of if the crime or offense had there been committed; Nicholas Lucien Metzger by the French Minister, on and the respective judges and other magistrates of the two Governments shall have power, jurisdiction

the charge of forgery in France; and the executive and authority, upon complaint made under oath, to authority at Washington, declining to act in the issue a warrant for the apprehension of the fugitive first instance, referred him to the courts. Metzger or person so charged, that he may be brought be

was afterward arrested in the city of New York, on fore such judges or other magistrates, respectively, to the end that the evidence of criminality may be

a warrant issued by a police magistrate; and the heard and considered; and if, on such hearing, the magistrate, after examining the case, deemed the evidence be deemed sufficient to sustain the charge, evidence sufficient, and committed him to prison to it shall be the duty of the examing judge or magis

await the order for extradition from the President. trate to certify the same to the proper executive authority, that a warrant may issue for the surren

IIe was, on habeas corpus, released from prison by a der of such fugitive. The expense of such appre

circuit judge of the State of New York, who held bension and delivery shall be borne and defrayed that the magistrate had no jurisdiction over the by the party who makes the requisition and receives

matter. He was subsequently arrested on a warrant the fugitive."

issued by Judge Betts, of the United States District This differs from the treaty of 1794, in increasing Court, who, after hearing the case, held that it came the number of extradition crimes to seven, and in

within the terms of the treaty with France; that providing that the judges and other magistrates of the evidence was sufficient to detain the accused, the respective Governments shall have power to and that, the treaty being a part of the supreme arrest and examine alleged fugitives, and, if the law of the land, no act of Congress was needed to evidence of criminality be sufficient, to certify the carry it into execution. The judge committed him fact to " the proper executive authority,” that a to prison, to await the action of the President. warrant for surrender may be issued.

1 Edmond's Select Cases, 399. An application was In The Matter of the British Prisoners, 1 Wooodb. then made to the Supreme Court of the United & Minot, 66, Judge Woodbury interpreted the States for a writ of habeas corpus, to review the acwords "the proper executive authority” to mean,

tion of Judge Betts; and the court, upon hearing in their application to the United States, the Presi- the case, refused to grant the writ, on the ground dent acting in such matters through the State De- that, the district judge having exercised a special partment, whose acts are to be regarded as his and authority at chambers, and there being no provision by his authority. He also said that, “ where the of law for a revision of his judgment, the court had aid of no such act of Congress seems necessary in no jurisdiction in the matter. 5 How. 176. respect to a ministerial duty devolved on the Exe- The President of the United States then issued cutive by the supreme law of a treaty, the Executive | his order, commanding the marshal of New York need not wait and does not wait for acts of Congress to deliver the prisoner to the diplomatic agents of to direct such duties to be done." This case occur- the French Government. Before this order was executed, Judge Edmonds, a circuit judge of New sion of Judge Edmonds, but, by its title, seems to York, granted a writ of habeas corpus which brought recognize the correctness of his view. The law, as the accused before him; and after the case was then enacted, as subsequently supplemented by the twice argued, he discharged him, giving an elaborate acts of June 22d, 1860, and of March 3d, 1869, and opinion directly the reverse of that of Judge Betts. as reproduced in the Revised Statutes of the United “ This case," said the Judge, “involves the ques- States, is contained in sections 5270-5277. The first tion whether the President of the United States of these sections reads as follows:has authority, by virtue of mere treaty stipulation, “Whenever there is a treaty or convention for and without an express enactment of the national extradition between the Government of the United legislature, to deliver up to a foreign power, and

States and any foreign government, any justice of virtually to banish from the country, an inhabitant

the Supreme Court, circuit judge, district judge,

commissioner authorized so to do by any of the courts of one of the sovereign States of our confederacy." of the United States, or judge of a court of record of The conclusions to which he came, after consider- general jurisdiction of any State, may, upon coming the question at large, are the following:-1.

plaint made under oath, charging any person found That “a treaty containing provisions to be executed

within the limits of any State, district or Territory,

with having committed within the jurisdiction of in futuro is in the nature of a contract, and does not any such foreign government any of the crimes probecome a rule for the courts until legislative action vided for by such treaty or convention, issue his shall be had on the subject.” 2. That “the treaty

warrant for the apprehension of the person so with France of 1843, providing for the surrender of

charged, that he may be brought before such justice,

judge or commissioner, to the end that the evidence fugitives from justice, cannot be executed by the

of criminality may be heard and considered. If, on President of the United States without an act of such hearing, he deems the evidence sufficient to Congress.” See the Matter of Metzger, 1 Barb. 248. sustain the charge under the provisions of the This simply applies the principle stated in Foster proper treaty or convention, he shall certify the

same, together with a copy of all the testimony taken v. Neilson, supra, and also in Turner v. The American before him to the Secretary of State, that a warrant Baptist Missionary Union, 5 McLean's C. C. R., 344. may issue upon the requisition of the proper auIf the treaty-making power can pledge the faith of

thorities of such foreign government for the sur

render of such person, according to the stipulations the United States in respect to future acts, and in

of the treaty or convention; and he shall issue his dependently of and without the legislation of Con- warrant for the commitment of the person so gress, commit the execution of treaties to the Presi-eharged to the proper jail, there to remain until dent, thus in effect constituting him the sole judge such surrender shall be made.” of their meaning and the occasions and manner of This provides the judicial agency for arresting their fulfillment, then it is theoretically a very

any person charged with crime under any extradidangerous power, because capable of the most

tion treaty, and also examining the evidence of his enormous abuses.

The President acts independent-criminality, and certifying the same to the Secrely of Congress when exercising the treaty power; tary of State if the evidence be deemed sufficient and if he be equally independent in respect to the

to sustain the charge. execution of treaties, then he may, with the con

Section 5271, as amended by the act of June 19th, sent of the Senate, place the whole matter in his

1876, relates to the evidence upon the judicial hearown hands, without the restraints or guidance of ing of any complaint, and reads as follows : law, except as thus made. The fact that a treaty, whether for extradition or any other purpose, is a

“In every case of complaint and of a hearing part of “the supreme law of the land," no more

upon the return of a warrant of arrest, any deposi

tions, warrants or other papers offered in evidence, makes it self-acting and self-executing without legis- shall be admitted and received for the purpose of lation, than does the fact that the Constitution is such hearing if they shall be legally and properly such a law make it self-acting and self-executing.

authenticated, so as to entitle them to be received

as evidence of the criminality of the person so apNearly all the powers granted in the latter are

prehended by the tribunals of the foreign country brought into operation by legislative action. Why from which the accused party shall have escaped, should not the same rule apply to the contracts and copies of any such depositions, warrants or made in treaties, especially when their stipulations other papers shall, if authenticated according to the do not upon their face act in presenti, but provide law of such foreign country, be in like manner re

ceived as evidence; and the certificate of the prinfor things to be done only in futuro? Such treaties cipal diplomatic or consular officer of the United address themselves to the legislative discretion of States resident in such foreign country shall be Congress, and are to be executed by its aid and proof that any such deposition, warrant or other co-operation.

paper, or copy thereof, is authenticated in the man

ner required in this section." The act of Congress, of August 12th, 1848, entitled “An Act for giving effect to certain treaty This does not change the rule that the evidence stipulations between this and foreign governments of criminality must be such as would justify the for the apprehension and delivering up of certain commitment of the accused for trial, if the alleged offenders," not only followed soon after the deci- offense had been committed in the country on which

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