Whatever I might think of the power of the Federal Executive in the premises, were this a new question, I consider the rules laid down by Mr. Jefferson, and sanctioned after the lapse of thirty years by another administration, as too solemnly settled to be now departed from.

Hon. D. Webster, Sec. of State.

H. S. LEGARE.

(3.) CASE and JOINT OPINION of the Attorney and Solicitor General, SIR JOHN ROMILLY and SIR A. E. COCKBURN, on the Act 6 & 7 Vict. c. 79 (an Act to carry into effect a Convention concerning the Fisheries in the Seas between the British Islands and France); and the Jurisdiction of the Royal Court of Jersey. 1851.

Case. Some British fishing-boats, including one from Jersey, were found fishing off the coast of France, within the French limits; and the French authorities being desirous that proceedings should be taken against the Jersey boat for an infraction of the Fishery Laws, the Lieutenant-Governor of Jersey referred the question to the Attorney General of the island, for his opinion as to whether the Royal Court there had jurisdiction in the case. The Attorney General said, in his Opinion: "I doubt if the Royal Court of this island has jurisdiction in the case, inasmuch as the occurrence took place within the limits within which the general right of fishing is stated to be exclusively reserved to the French. The jurisdiction in such cases appears to me to belong altogether to the French tribunal, under the 89th section of the Fishery Regulations, agreed upon by the two countries on the 23rd of June, 1843." A further question arose, as to whether the conduct of the crews of the other boats, in endeavouring to rescue her from the hands of the French, who had seized her, was punishable in Jersey, and on this point the Attorney General said: "As regards the second offence, neither the Act 6 & 7 Vict. c. 75 (to carry into effect the Extradition Treaty between Great Britain and France), nor the regulations abovementioned, provide specifically for the case of a British fisherman resisting or obstructing a French officer or functionary; nor have other law under which such an offence could be tried in the Royal Court, nor is that Court empowered to send the supposed offenders to a French court for trial."

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The case was then submitted to the Law Officers of the Crown, Sir John Romilly and Sir A. E. Cockburn, and they were asked whether, under the Act 6 & 7 Vict. c. 79, the Royal Court of Jersey had jurisdiction to try the parties for either, and which, of the alleged offences?

Opinion. We think that the present case is one omitted in the provisions of the Act. The 11th section states that the magistrate to hear the charge is to be one having jurisdiction in the country or place in which, or in the waters adjacent to which, the offence shall be committed, or to which the offenders shall be brought. Here the offence was committed in French waters, and not in the waters adjacent to Jersey, and the offenders were not brought to Jersey, although they escaped thither. In these circumstances we are compelled to agree with the Attorney General of Jersey, and are of opinion that, under the Act 6 & 7 Vict. c. 79, the Royal Court of Jersey has no jurisdiction to try the parties for any one of the alleged offences mentioned in the above correspondence.

Lincoln's Inn, March 22, 1851.

JOHN ROMILLY.
A. E. COCKBURN.

(4.) OPINION of the United States Attorney General, Mr. CUSHING, on the Extradition of Criminals (1).

Attorney General's Office, August 19, 1853. .

SIR,-I have examined the papers which you were pleased to submit to me in the case of The People of New York v. Anson Wing, from which it appears that the said Wing is under indictment for larceny alleged to have been committed by him in violation of the law of the State of New York, and is now a fugitive from justice in the British provinces; and application is made to you for process to obtain the extradition of said Wing.

Larceny is not among the cases provided for by any convention between the United States and Great Britain. The crimes enumerated in the treaty of 1842, which now governs the question, are murder, or assault with intent to commit murder, or piracy, or

(1) 6 Attorney Generals' Opinions, 85.

arson, or robbery, or forgery, or the utterance of forged papers. It is, therefore, in these cases only that by treaty either Government can claim the extradition of fugitives from justice taking refuge in the dominions of the other.

It is the settled doctrine of the United States that, independently of special compact, no State is bound to deliver up fugitives from the justice of another State (see the authorities collected in Wheaton's Elements, p. 172).

It is true any State may, in its discretion, do this as a matter of international comity towards the foreign State; but all such discretion is of inconvenient exercise in a constitutional republic organized as is the Federal Union; and accordingly, it is the decided policy of this Government to refuse to grant extradition except in virtue of express stipulations to that effect (Mr. Legare's Opinion, October 11, 1841) (1).

I think it is unjust and unwise, in point of principle, for the United States to ask as an act of comity from any other Government what it refuses to do in the like case itself. We should, it seems to me, stand on the basis of complete reciprocity of right and equal justice in all our relations with foreign Governments, doing as we would be done by, and demanding of them only what we are prepared to concede in return. That was the public doctrine of this Government in the days of our relative weakness, and it should the more plainly be so now in the time of our relative strength.

Special reasons exist to dictate reserve in the matter of extradition. If the enumeration of cases for the claim of extradition in existing treaties be not sufficiently ample, it would seem better to enlarge the same by further mutual stipulations, rather than at the mere discretion of the President.

I am therefore of opinion, that to grant the present application would be contrary to the true doctrines of international law, and to the received practice of the United States.

The President.

C. CUSHING.

(1) See ante, p. 342.

(5.) OPINION of the same Attorney General on the same subject (1).

Attorney General's Office, August 31, 1853. SIR, I have considered the question presented by your note of yesterday.

It appears that on application on behalf of the British Government, duly made to that of the United States, a mandate issued on the 12th inst., in the name of the President, calling on certain magistrates therein designated, or any one of them, to cause William Calder, charged with the crime of forgery committed in Great Britain, to be arrested as a fugitive from justice, and to examine the evidence of his criminality; and, if the charge should be sustained, to certify the same to the President, to the end that said Calder may in such case be surrendered to the proper authorities of the British Government.

This mandate, the issue of which is a departure from the recently pre-existing practice of the Government, seemed to me to be called for by the action of the Supreme Court of the United States in Kaine's Case (In re Kaine, 14 Howard, p. 103); for although the necessity of such a mandate is not the thing specifically passed upon by the Court in that case, yet the views expressed by some of the members of the Court as to the true course of proceeding in such cases, and the analogy of the practice in Great Britain itself, led to the conclusion on the part of the President, that in case of claim for extradition falling within the scope of any treaty provision, it was proper for this Government, on being requested by the foreign Government desiring extradition of an alleged fugitive from its justice, and reasonable cause in the premises being shown, to move to action the proper judicial authorities of the country, in order to the arrest and lawful examination of the party charged with crimes and the investigation thereof for the information of the Government.

So that, whereas heretofore, the parties desiring the extradition of an alleged fugitive from the justice of a foreign Government went, in the first instance, to some one of the officers designated in the Act of Congress of the 12th of August, 1848, entitled "An Act for giving effect to certain treaty stipulations between this and (1) 6 Attorney Generals' Opinions, 91.

foreign Governments for the apprehension and delivery up of certain Offenders," and sued out a warrant of arrest and pursued the other requisitions of that Act; now, in the opinions expressed, by Mr. Justice Nelson especially, in Kaine's Case, the party may, if he please, commence by applying to the President of the United States for a mandate, which being granted, the Act of Congress above cited then takes up the case, and pursues it to the conclusion corresponding to the particular facts and to our treaty obligations towards the given foreign Government.

I say here, in repetition, substantially, of the idea before intimated, that the foreign Government may, if it please, apply to the President for a mandate. The Federal Government does not require this, but only stands ready to do it if required by the foreign Government.

For, when carefully analysed, the decision in Kaine's Case appears to be this: Thomas Kaine, charged as a fugitive from the justice of Great Britain within the treaty, was arrested by one of the Commissioners in New York, appointed by the Circuit Court of the United States to take affidavits and examinations, and committed to abide the order of the President.

Thereupon a writ of habeas corpus in the matter was issued by the Circuit Court of the United States, and upon the hearing before the District Judge dismissed. After this another writ of habeas corpus was ordered by Mr. Justice Nelson at chambers, and a hearing thereon reserved by him to be had before the Supreme Court of the United States in banco. On the argument of the case, eight judges being present, four of these (Justices Catron, McLean, Wayne, and Grier) declared, through Mr. Justice Catron, that in their opinion the proceedings before the Commissioner were correct, and the party had been rightfully committed for extradition, but that the Supreme Court had no jurisdiction of the habeas corpus. Mr. Justice Curtis, for other reasons assigned by him, came to the same conclusion as to the precise question before the Court; and Mr. Justice Nelson, and the Chief Justice and Mr. Justice Daniel, for whom he spoke, were of opinion that the proceedings before the Commissioner were incorrect, and that the Supreme Court had jurisdiction of the writ of habeas corpus to revise the question of the lawfulness of Kaine's commitment.