own citizens or subjects, but to this proposal Mr. Gresham, Secretary of State, replied: "The President is unwilling to enter into any treaty of extradition which will exclude citizens or subjects and the prevention of crime within the territories and jurisdiction of the parties respectively that persons committing certain heinous crimes, being fugitives from justice, should, under certain circumstances, be reciprocally delivered up, and also to enumerate such crimes explicitly; and whereas the laws and constitution of Prussia, and of the other German states, parties to the convention, forbid them to surrender their own citizens to a foreign jurisdiction, the Government of the United States, with a view of making the convention strictly reciprocal, shall be held equally free from any obligation to surrender citizens of the United States: Therefore, etc.' "This recital, it is to be observed, was not a declaration by the United States alone, but by both parties, of the reason for the exclusion of citizens. The same declaration is found in the treaty with Bavaria of 1853, with Austria-Hungary of 1857, with Baden of 1857, and with various German states by virtue of their accession to the treaty with Prussia, which was, in 1868, finally extended to the whole of the north German Confederation. "In the record of the negotiation of the treaty with Italy no reference is found to the subject of citizens. What may have been said in the oral discussions cannot now be discovered. It is, however, a matter of record in this Department that in the same year, 1868, Mr. Seward, who, as Secretary of State, signed the treaty on the part of the United States, refused to conclude a convention with Belgium because she insisted upon the exception of her citizens. In this re lation I may advert to another fact which possesses great significance. The treaty of extradition concluded between the United States and Italy in 1868 was one of two treaties concluded between those countries in that year, the other relating to the rights and privileges of consuls. These treaties were designed to take the place of the treaties formerly made between the United States and the independent states of Sardinia and the Two Sicilies. In the treaty with the latter Government of 1855, there were stipulations relating to extradition, and among them was the following provision: "The citizens and subjects of each of the high contracting parties shall remain exempt from the stipulations of the preceding articles, as far as they relate to the surrender of fugitive criminals.' (Article XXIV.) "In view of, the existence of this clause in the treaty with the Two Sicilies, it can scarcely be supposed that the parties to the substitutionary arrangement of 1868, negotiated that instrument in oblivion of the question as to citizens. And when we consider the omission of the clause, especially in conjunction with Mr. Seward's refusal to negotiate with Belgium, the inference seems to be morally irresistible that the obligation to deliver up their citizens, under the treaty of 1868, was fully understood by the contracting parties at the time of its conclusion. "From what has been stated I am forced to conclude, not only that international law does not except citizens from surrender, but also that it has been well understood, especially in of either country from its operations. No good reason is perceived why citizens of the United States who commit crimes in Italy, or Italian subjects who commit crimes in the United States, dealing with the United States, that the term 'persons' includes citizens and requires their extradition, unless they are expressly exempted. "Nor am I able to find sufficient ground for the refusal to surrender citizens in the general principles on which extradition is conducted. It does not satisfy the ends of justice to say that, although a nation does not extradite its citizens, it undertakes to try and punish them. This argument may be admitted to have great force where, by reason of the absence of any conventional assurance of reciprocity, a nation declines a demand addressed to its discretion. But the chief object of extradition is to secure the punishment of crime at the place where it was committed, in accordance with the law which was then and there of paramount obligation. It is for this purpose that extradition treaties are made, and, except in so far as their stipulations may prevent the realization of that design, they are to be executed so as to give it full effect. It is at the place where the offense was committed that it can most efficiently and most certainly be prosecuted. It is there that the greatest interest is felt in its punishment and the moral effect of retribution most needed. There, also, the accused has the best opportunity for defense, in being confronted with the witnesses against him; in enjoying the privilege of cross-examining them; and in exercising the right to call his own witnesses to give their testimony in the presence of his judges. These and other weighty considerations, which it is not necessary to state, have led what I am inclined to regard as the great preponderance of authorities on international law at the present day to condemn the exception of citizens from the operation of treaties of extradition. In France I need only to refer to such well-known writers on extradition as Billot and Bernard. In Italy I may refer again to the eminent publicist Fiore, who says that, in spite of all that has been said on the subject, his opinion is that, while in former times the absolute prohibition against the surrender of citizens had some reason for its existence, it is insisted upon to-day rather as one of numerous conventional aphorisms, accepted without searching discussion for fear of showing too little regard for national dignity (Traite de Droit Penal Int., section 362). I will not extend the length of this note by citing other books, but, as showing the general view of eminent publicists, will refer to two resolutions of the Institute of International Law, adopted at the session at Oxford in 1881-82. Those resolutions are as follows: "VI. Between countries whose criminal legislation rests on like bases, and which should have mutual confidence in their judicial institutions, the extradition of citizens would be a means to assure the good administration of penal justice, since it ought to be regarded as desirable that the jurisdiction of the forum delicti commisi should, so far as possible, be called upon to judge. """VII. Admitting it to be the practice to withdraw citizens from extradition, account ought not to be taken of a nationality acquired only should not, if they take refuge in their own country, be delivered up by its authorities to the country whose laws they have violated. A refusal to surrender them would result, in the case of Americans committing crime in Italy, in an utter failure of justice; and though Italy may undertake to punish her subjects who, after committing crime here, return within her jurisdiction, yet the means of ascertaining the truth and doing justice must, under such conditions, always be difficult and often unattainable." 90 It was decided by the courts of Switzerland that under the terms of the treaty between that country and the United States, a person charged with the commission of embezzlement in the United States, and who resisted extradition on the ground that he was a citizen of Switzerland and not subject to surrender, should, nevertheless, be delivered up. The treaty of 1850 between these two countries provided for the surrender of persons charged with crime, and had no stipulation exempting the citizens of the contracting parties from surrender. The stipulation was made in general terms, and no distinction was made between strangers and citizens.91 In 1893 the United States refused to surrender a person who had been committed for extradition to Mexico, under the terms of a treaty providing that the contracting parties should not be after the perpetration of the act for which extradition is demanded. (Annuaire, v. 1881-82, pp. 127, 128.) ' "At the session at which these resolutions were adopted seventeen members and eight associates of the institute were present, including some of the most eminent publicists in Eu rope, and representing Italy, Germany, Austria, Belgium, Spain, France, Great Britain, Greece, Russia, and Sweden. "In view of what has been shown, I am unable to discover any ground of reconciliation of the totally opposite views entertained by the United States and Italy in regard to the force and effect of the treaty of 1868, unless the Government of Italy will reconsider its position. The present situation, therefore, seems to me to require either the denunciation of that treaty or the conclusion of new stipulations upon which the contracting parties will find themselves in ngreement. If, as a part of those stipulations, citizens should be excepted, it would be essential to reach an understanding as to the effect of naturalization. These matters it is not my purpose to discuss on the present occasion, but I deem it my duty to suggest them for consideration." Mr. Blaine, Secretary of State, to Baron Fava, Ital. Min., June 23, 1890, For. Rel. 1890, 559. For. Rel. 1894, 361, 364; 4 Moore Int. L. Dig. 297. 91 Mr. Washburne, Minister to Switzerland, to Mr. Blaine, Secretary of State, No. 50, March 23, 1891, 28 MS. Desp. from Switzerland. bound to deliver up their own citizens. This action was placed on the ground that it appeared from the evidence that he was a citizen of the United States.92 § 326. Under the Mexican law.-Under the Mexican law a foreigner acquiring real estate becomes a citizen, and on this ground the Mexican government, in 1895, refused to surrender to the United States a fugitive from justice who had purchased real estate in Mexico.93 The treaty of 1899 between the United States and Mexico, while providing that neither party shall be bound to deliver up its own citizens, also contains a stipulation that "the executive authority of each shall have the power to deliver them up, if, in its discretion, it be deemed proper to do so." In that year a woman charged with the murder of her husband in Mexico, although both were American citizens, was delivered up." 94 In 1884 the United States declined to surrender Alexander Trimble, an American citizen, to Mexico, on charges of robbery and murder, basing its refusal on the ground that the President was not authorized to act, as the treaty negatived any obligation of this character.95 In 1878 certain Mexicans who had taken part in an assault on a jail in Texas were ordered surrendered, but before the order was carried into effect the governor of Texas made the issuance of the order the foundation of a demand for the extradition of other Mexicans as a matter of right, and on this ground the order was withdrawn.96 In 1878 Mexico signified its willingness to grant the extradition of its citizens if it could receive a formal assurance of reciprocity. Mr. Evarts stated that he did not deem himself clothed with authority to give such a general pledge, and added: "Cases, however, may, and probably will, occur in which the President would not hesitate to exercise in due form whatever discretion in such matters might rest with him, were adequate provisions made by * Mr. Gresham, Secretary of State, to Mr. Romero, Mexican Minister, May 13, 1893, Notes to Mexico, IX, 664. 334 Moore Int. L. Dig. 303; Mr. Olney, Secretary of State, Minister to Mexico, December 13, 1895, For. Rel. 1895, II, 1008; Mr. Mariscal, Treaties-24 Minister of Foreign Affairs, to Mr. * For. Rel. 1899, 497-501. 95 Report of Mr. Frelinghuysen, in Sen. Ex. Doc. 98, 48th Congress, 1st Session. 96 For. Rel. 1878, 534, 539, 540. Congress to that end. In the absence of any provisions of law for the extradition of criminals in cases not covered by treaty obligations, it is very apparent that this government must reserve the right to decide upon its own circumstances each case which may be brought to its notice by your government." 97 § 327. Citizen of another country.-But while under a treaty American citizens may not be surrendered, this principle does not apply to the citizens of another country found within the limits of the United States. The correct view was expressed by Mr. Marcy: "If a Mexican citizen should commit a crime in England and flee to the United States, there is no doubt in my mind that this government would have a right to surrender him as a fugitive on a requisition under our treaty of extradition with her." 98 Hence it is not necessary that a foreign government should prove that the person whose extradition is sought is one of its citizens, "for its right to demand extradition is not limited to the case of its own citizens, but extends to all cases, save that of American citizenship." 99 § 328. Political offenses.-Extradition will not be granted for political offenses. It may be difficult, however, in many instances, to determine whether an offense is political within the sense of the term as used. On an application for extradition it is only necessary to show probable cause. As said by Chief Justice Marshall: "I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief, nor should I even require that which should absolutely convince my own mind of the guilt of the accused. But I ought to require, and I should require that probable cause be shown, and I understand probable cause to be a case made out by proof, furnishing good reason to believe that the crime alleged has been committed by the person charged with having com 97 1 Moore on Extradition, 166. Other instances may be found cited in 1 Moore on Extradition, 166, showing the application of this principle. 98 Mr. Marcy, Secretary of State, to Mr. Gadsen, Minister to Mexico, No. 54, October 22, 1855, MS. Mexico, XVII, 54. "Mr. Gresham, Secretary of State, to the Attorney General, May 22, 1893, 192 MS. Dom. Let. 82. |