circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. This consent may, in some instances, be tested by common usage and by common opinion growing out of that usage. A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world."' 111

§ 334. Attempt against life of President or other officers.-It is now provided in many treaties that an attempt to take the life of the head of a nation shall not be considered a political offense. In the treaties concluded in 1882 and 1883 between the United States and Belgium and Luxemburg, a clause was inserted that an attempt against the head of the government or against any member of his family shall not be considered a political offense when such attempt comprises the act of murder, assassination or poisoning. Similar clauses were inserted in the recent treaties concluded with Russia and Denmark.112 The extradition treaty of Brazil of 1897 provides that an attempt against the life of the President or vice-president of the United States, or the governor or lieutenant-governor of any state, or the President or vice-president of the United States of Brazil, or of the President or vice-president or governor of any of its states, shall not be considered a political crime when it is unconnected with political

movements.

After the assassination of President Lincoln a request was made to several governments to surrender his assassin, should he be found within their jurisdictional limits, and in all cases none but a ready and favorable response was received. John H. Surratt, charged with complicity in the assassination, was arrested at Alexandria in 1866, and with the co-operation of the Egyptian authorities was placed on board of an American manof-war.113 While under the treaty with Italy, political offenses.

are not extraditable, the Department of State is not inclined to consider any case to be a political one merely because the victim is the head of the government.114

§ 335. Case of anarchists. It was held by the court of queen's bench in England, in 1894, that to constitute an offense of a political character, "there must be two or more parties in the state, each seeking to impose the government of their own choice on the other," and that the offense must be "committed by one side or the other in pursuance of that object." Accordingly, anarchists, notwithstanding they claim that they are actuated by political motives, are not to be considered political offenders.115

§ 336. Trial for different offense. It is now a settled rule in the United States that a fugitive who has been extradited from a foreign country upon a specified charge can be tried for that offense only until he has had a reasonable time and opportunity after his release or trial to return to the country from which he was taken.116

Mr. Justice Miller, after reviewing many authorities, summed up by saying: "Upon a review of these decisions of the federal and state courts, to which may be added the opinions of the distinguished writers which we have cited in the earlier part of this opinion, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty

Mr. Hill, Acting Secretary of State, to Baron Fava, Tel. September 12, 1900, MS. Notes to Ital. Leg., IX, 462.

115 In re Meunier, 2 Q. B. [1894] 415. In that case a fugitive from justice, who was charged with causing the explosion at the Café Véry, in Paris, as well as another explosion at the barracks of the government, was ordered delivered up.

116 United States v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, 30

L. ed. 425; United States v. Watts, 8 Saw. (U. S.) 370, 14 Fed. 130; State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431; Ex parte Coy, 32 Fed. 911; Commonwealth v. Hawes, 13 Bush (Ky.), 697, 26 Am. Rep. 242; Blandford v. State, 10 Tex. App. 627; Ex parte Hibbs, 26 Fed. 421; People v. Hannan, 9 Misc. Rep. 600, 30 N. Y. Supp. 370; People v. Stout, 81 Hun (N. Y.), 336, 30 N. Y. Supp. 898.

can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him after his release or trial upon such charge to return to the country from whose asylum he had been forcibly taken under those proceedings." 117 Thus, a fugitive extradited for larceny cannot be extradited for forgery; 118 nor is a fugitive who has been extradited on an indictment filed in a state court subject to arrest by a federal court.119 But where the distinction between principals and accessories has been abolished by statute, a fugitive extradited as an accessory may be tried as a principal.120 A fugitive who is captured while voluntarily returning to the United States is not entitled to claim the benefit of this exemption.121

§ 337. Pleading other offense.-Judge Deady said that the detention of a person for a charge other than that for which he had been surrendered would be "not only an infraction of the contract between the parties to the treaty, but also a violation of the supreme law of this land in a matter directly involving his personal rights. A right of person or property secured or recognized by treaty may be set up as a defense to a prosecution in disregard of either with the same force and effect as if such right was secured by an act of Congress.'' 122

In Ohio two persons, who were delivered by Canada for of fenses specified in the treaty, were for such offenses convicted and sentenced. Subsequently they were indicted on other charges, and they pleaded in abatement that they could not be placed upon their trial on these charges until after the lapse of a

11 United States v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, 30 L. ed. 425.

118 In re Fitton, 45 Fed. 472.

119 Cosgrove v. Winney, 174 U. S. 68, 19 Sup. Ct. Rep. 598; 43 L. ed. 897.

120 In re Rowe, 77 Fed. 165, 23 C. C. A. 103, 40 U. S. App. 516; State v. Rowe, 104 Iowa, 327, 73 N. W. 834.

121 Ward v. State, 102 Tenn. 727, 52 S. W. 997. See, also, In re Baruch, 41 Fed. 473; In re Reinitz, 39

Fed. 206, 4 L. R. A. 236; Hall v. Patterson, 45 Fed. 354; In re Cross, 43 Fed. 519; Ex parte McKnight, 48 Ohio St. 594, 28 N. E. 1034, 14 L. R. A. 130; State v. Hall, 40 Kan. 341, 10 Am. St. Rep. 202, 19 Pac. 920; Moletor v. Sonnen, 76 Wis. 312, 20 Am. St. Rep. 74, 44 N. W. 1100, 7 L. R. A. 818; In re Robinson, 29 Neb. 138, 26 Am. St. Rep. 379, 45 N. W. 268, 8 L. R. A. 309.

122 In Ex parte Hibbs, 26 Fed. 421

reasonable time after the expiration of their sentences for the crimes of which they had previously been convicted. This view was sustained by the supreme court of Ohio."

123

§ 338. Variances.-A person whose extradition is obtained on a charge of setting fire to and burning a brick "house," alleged to have been inhabited as a retail shoe store, may be indicted and placed on trial for setting fire to and burning a store "building" occupied as a store.124 So in a case where a fugitive was extradited from Canada on a charge of arson committed in the state of Iowa, and the information which constituted the foundation of the proceeding alleged that the arson was committed by the burning of a "house," which at the time of the act was “occupied and inhabited" by certain persons in conducting a business, but in the indictment on which he was convicted it was alleged that he burned a "store building," which was "occupied" as such by certain persons, it was held that the word "house" as employed in the information could not be considered a dwelling-house. This word, the court held, should be construed in connection with the other allegations, as a building used as a store, and consequently that no variance existed between the charge for which the extradition of the defendant had been secured and that on which he had been tried.125

Where a person is extradited on charges of forgery, embezzlement and larceny, it is not necessary that the government or commissioner should elect as to the charge for which he shall be tried. It is immaterial whether the indictment filed contain counts for forgery, larceny or embezzlement if the defendant is tried upon the facts which appear in evidence before the commissioner, and upon the charges, or one of the charges, for which he is surrendered.126

123 State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431. But see as to fugitive extradited from another state, State v. Leidigh, 47 Neb. 132, 66 N. W. 309; Lascelles v. State, 90 Ga. 362, 35 Am. St. Rep. 219, 16 S. E. 946; Lascelles v. Georgia, 148 U. S. 541, 13 Sup. Ct. Rep. 687, 37 L. ed. 551; State v. Patterson, 116 Mo. 516, 22 S. W. 698; Commonwealth v. Wright, 158 Mass. 151, 35

Am. St. Rep. 476, 33 N. E. 83, 19 L. R. A. 208; People v. Cross, 135 N. Y. 540, 31 Am. St. Rep. 853, 32 N. E. 247; State v. Glover, 112 N. C. 898, 17 S. E. 526.

124 State v. Spiegel, 111 Iowa, 701, 83 N. W. 722.

123 Cohn v. Jones, 100 Fed. 639. 126 Bryant v. United States, 167 U. S. 104, 17 Sup. Ct. Rep. 744, 42 L. ed. 94.

§ 339. Lesser offense.-Although the laws of a state permit a person to be convicted of a lesser crime under an indictment charging a higher one, it has been held that a person who has been surrendered in pursuance of a treaty of extradition on a charge of assault with intent to commit murder cannot be convicted of an assault with intent to do great bodily harm.127

It is said by the Department of State that "since the decision of the supreme court in the Rauscher case, it is believed by the Department to be well settled that a fugitive secured by extradition can neither be lawfully tried nor punished except for the offense for which his extradition was granted. And this rule holds good notwithstanding the offense for which it is proposed to try or convict him be included in that for which his extradition was granted, unless the former is also included in the treaty, which is not the case here. It is proper to say that this is also the view taken by the British government.

128

§ 340. Arrest on prior charge. The rule that an extradited prisoner is immune from arrest extends to the case when it is attempted to arrest him upon a prior judgment of conviction. Thus, several indictments were found against a person for conspiring to defraud the United States of duties upon imports, and of procuring the admission into the United States of goods in violation of the statute. He was convicted, sentenced to prison, took an appeal, was released on bail pending the appeal, and when the judgment of his conviction was affirmed, he fled to Canada. His extradition as a convict was demanded and refused, and immediately afterward a new demand was made, based upon an indictment on which he had not been tried. In compliance with this later demand he was surrendered by Canada, and while traveling on the train was arrested on a warrant based upon the former conviction, and lodged in prison. He sued out a writ of habeas corpus, and it was held that he should not be arrested or tried under the treaty for any other offense than that

127 People v. Stout, 81 Hun, 336, 30 N. Y. Supp. 898; People v. Cross, 135 N. Y. 540, 31 Am. St. Rep. 850, 32 N. E. 246.

128 Mr. Uhl, Acting Secretary of State, to Mr. Hanford, April 21, 1894, 196 MS. Dom. Let. 443. But

as to the right to try a person brought from another state for another offense without giving him an opportunity to return, see Taylor v. Commonwealth, 29 Ky. Law Rep. 714, 96 S. W. 440.