in favor of the blockading Powers.1 On December 29, 1902, shortly after the employment of force, Dr. Drago, Minister of Foreign Affairs of the Argentine Republic, in a note to Mr. Mérou, the Argentine Minister at Washington, for transmission to the Department of State, declared that

the principle which she [the Argentine Republic] would like to see recognized is: that the public debt can not occasion armed intervention nor even the actual occupation of the territory of American nations by a European power.2

Later, as has been observed, Dr. Drago sought to point out a distinction between the public loans of a State and other forms of its contractual obligations, for the purpose of securing approval of the idea that force should never be employed in behalf of foreign obligees against an obligor State.3

At the Second Hague Peace Conference, in 1907, General Horace Porter, a delegate of the United States, offered a proposition which became known as the Porter plan and which was, after amendment, accepted by the Conference and embodied in the Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, in the following form:

1 For the text of the Award, see For. Rel. 1904, 506; J. B. Scott, Hague Court Reports, 56. See, also, Final Report of W. L. Penfield, Agent of the United States, For. Rel. 1904, 509.

2 For. Rel. 1903, 1-5. See, also, Memorandum by way of response accompanying a note from Mr. Hay, Secy. of State, to Mr. Mérou, the Argentine Minister at Washington, Feb. 17, 1903, id., 5.

Concerning the Drago Doctrine, see Luis M. Drago, "State Loans in Their Relation to International Policy", Am. J., I, 692; Amos S. Hershey, "The Calvo and Drago Doctrines", id., I, 26; G. W. Scott, "International Law and the Drago Doctrine", North Am. Rev., CLXXXVIII, 602 (1906); "The Hague Convention Restricting the Use of Force to Recover on Contract Claims", Am. J., II, 78; Edwin M. Borchard, Diplomatic Protection, § 119; H. A. Moulin, La Doctrine de Drago, Paris (1908); S. Pérez Triana, La Doctrina Drago, Colección de Documentos, London, 1908; Alfredo N. Vivot, La Doctrina Drago, Buenos Aires, 1911; Bibliography in Oppenheim, 2 ed., I, 192; J. B. Scott, Hague Peace Conferences, I, 386, 392-400; A. Pearce Higgins, The Hague Peace Conferences (1909), 184-188, and bibliography.

"It may be noted that Drago protests only against the use of armed force on the collection of public debts and not directly against diplomatic interposition. Most of the writers who have discussed the question have failed to note this distinction, possibly because a denial of forcible measures deprives interposition of its most effective sanction." Edwin M. Borchard, Diplomatic Protection, p. 309.

3 Luis M. Drago, "State Loans in Their Relation to International Policy", Am. J., I, 692; also address of Dr. Drago before the First Sub-Commission of the First Commission of the Second Hague Peace Conference, July 18, 1907, Deuxième Conférence Internationale de la Paix, Actes et Documents, II, 246-251, an abstract of which is contained in J. B. Scott, Hague Peace Conferences, I, 405-411.

THE HAGUE CONVENTION OF 1907

[§ 309

The Contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals.

This undertaking is, however, not applicable when the debtor State refuses or neglects to reply to an offer of arbitration, or after accepting the offer, prevents any "Compromis" from being agreed on, or, after the arbitration, fails to submit to the award.1

While this language restricts the use of armed force to the occasions specified, it is significant as a declaration that the employment of such means of obtaining justice may not be improper when the obligor State refuses to arbitrate, or prevents recourse to arbitration, or fails to submit to an award. The provision, on the other hand, that an offer of arbitration must precede such action on the part of the obligee State is token of the general recognition of the principle that an international judicial remedy which is always available should be exhausted before an appeal to armed force becomes justifiable. The convention simply takes into account the remediless condition of the obligee, and by faciliating if not pressing arbitration, attempts to substitute amicable adjustment by judicial means for non-amicable adjustment based upon the use of force. Moreover, "A debtor State is protected by the law until it puts itself outside the law that is, outside of the three reasonable reservations." 2

-

Thus it would appear that in the event of a controversy, a debtor State would, under the convention, have the right to demand that the State of the obligee enter into a reasonable agreement to arbitrate, before the latter could justly resort to force, and having so agreed, to follow the procedure (as Art. II provides) expressed

1 Malloy's Treaties. II, 2254, J. B. Scott, Hague Peace Conferences, II, 357. See, also, address of General Porter, before the First Sub-Commission of the First Commission of the Second Hague Peace Conference, July 16, 1907, Deuxième Conférence Internationale de la Paix, Actes et Documents, II, 229. For the text of the Porter plan as first presented, id., II, 916, J. B. Scott, Hague Peace Conferences, II, 400. See, also, Instructions to the American Delegates to the Second Hague Conference of 1907, May 31, 1907, For. Rel. 1907, II. 1128, 1133.

2 G. W. Scott, "The Hague Convention Restricting the Use of Force to Recover on Contract Claims", Am. J., II, 78, 80.

3 Resolution by the Senate declaring "that the United States approves this Convention with the understanding that recourse to the permanent court for the settlement of the differences referred to in said Convention can be had only by agreement thereto through general or special treaties of Arbitration heretofore or hereafter concluded between the parties in dispute." Malloy's Treaties, II, 2259.

in Part IV, Chapter III of the Hague Convention of 1907, for the Pacific Settlement of International Disputes, especially in the matter of arranging the compromis.1

In making provision for the treatment of "contractual debts" it is believed that the convention gave expression to an agreement applicable to all forms of indebtedness of a State to an alien, embracing without distinction public loans evidenced by bonds; and that there was contemplated the adjustment of any issue arising from non-payment, whether or not resulting from a repudiation of its contract by an obligor State through the exercise of sovereign power.2

4

EXTRADITION

a

§ 310. Preliminary.

Extradition was defined by Chief Justice Fuller in the case of Terlinden v. Ames to be:

The surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him demands the surrender.3

1 See, especially, Art. LIII of this convention, Malloy's Treaties, II, 2238. Also J. B. Scott, Hague Peace Conferences, I, 418-420.

2 G. W. Scott, "The Hague Convention Restricting the Use of Force to Recover on Contract Claims", Am. J., II, 78, 90-94; J. B. Scott, The Hague Peace Conferences, I, 416-418; A. Pearce Higgins, The Hague Conferences, 194-196; Edwin M. Borchard, International Contractual Claims and Their Settlement, Baltimore, 1913, 52-53. See, also, Deuxième Conférence Internationale de la Paix, Actes et Documents, I, 553–561, especially the views expressed by General Porter, 558.

3 184 U. S. 270, 289; also, Moore, Extradition, I, § 1, citing Billot, Traité de l'Extradition, 1.

See, generally, John Bassett Moore, Third Assistant Secretary of State, Report on Extradition, with returns of all cases from August 9, 1842, to January 1, 1890, Washington, 1890; same author, Extradition and Interstate Rendition, 2 vols., Boston, 1891; Moore, Dig., IV, 239-424; same author, The Difficulties of Extradition (reprinted from publications of Academy of Political Science, I, No. 4), New York, 1911; Samuel Thayer Spear, Law of Extradition, International and Interstate, 2 ed., Albany, 1884; John G. Hawley, Law and Practice of International Extradition, Chicago, 1893; Extradition of Fugitives from the United States in Foreign Jurisdiction (Extract from book of instructions to court officials), issued by the Attorney-General, June 1, 1916.

See, also, Biron and Chalmers, Law and Practice of Extradition, London, 1903; A. Billot, Traité de l'Extradition, Paris, 1874; Ludovic Beauchet, Traité de l'Extradition, Paris, 1899; Paul Bernard, Traité Théorique et Pratique de l'Extradition, 2 vols., Paris, 1890; Sir Edward Clarke, Law of Extradition,

The extradition of a fugitive from justice signifies that the State within whose domain he is found, believes it to be preferable that he should be prosecuted by the country where the offense was committed than remain unpunished or even be prosecuted under the laws of the place of asylum.1 Inasmuch as in the United States and England crime is regarded as territorial, and the wrongdoer punishable solely in the place where his offense occurred, failure on the part of either of them to surrender a fugitive to the foreign country within whose territory he committed a crime, would result in his immunity from prosecution. Where the laws of the State of asylum permit the prosecution of its own nationals, who may have committed offenses on foreign soil, the surrender of such an individual indicates even stronger preference for the prosecution of the wrongdoer at the place where his criminal acts took place. Such preference on the part of the State of asylum always indicates that it regards with respect the administration of justice of the country demanding the fugitive, and also that it itself denounces as illegal and punishable the commission within its own domain of acts such as are laid at the door of the fugitive. Respect for the administration of justice in foreign countries sufficient to encourage States to conclude treaties of extradition is the result of a highly organized society of nations, the intercourse between whose members has become intimate and friendly. The habit of extradition marks the abatement of distrust which long retarded the surrender of fugitives and oftentimes served to thwart the operation of existing treaties.3

As a reasonable exercise of its exclusive right of jurisdiction within its own domain, a State is believed to violate no legal duty, in declining, in the absence of treaty, to surrender a fugitive found within its territory to any foreign demanding Govern4 ed. (Prepared by that author and E. Percival Clarke), London, 1903; Pasquale Fiore, Traité de Droit Pénal International et de l'Extradition, French translation by Antoine, 2 vols., Paris, 1880; Sir Francis T. Piggott, Extradition, London, 1910; J. Saint-Aubin, L'Extradition et le Droit Extraditionnel Théorique et Appliqué, 2 vols., Paris, 1913; Maurice Violet, La Procédure d'Extradition Spécialement dans le Pays de Refuge, Paris, 1898.

Proceedings, American Society of International Law, III, 95-165; Draft on Extradition prepared by Delegates to the International Commission of Jurists at Rio de Janeiro, For. Rel. 1912, 37-39; Resolutions adopted by the Institute of International Law in 1880, Annuaire, V, 127, J. B. Scott, Resolutions, 42; Resolutions adopted by the same body in 1892, Annuaire, XII, 182, J. B. Scott, Resolutions, 102.

1 Mr. Blaine, Secy. of State, to Baron Fava, Italian Minister, June 23, 1890, For. Rel. 1890, 559, 566, Moore, Dig., IV, 290, 296.

2 Statement in Moore, Dig., IV, 287.

See also in this connection, For. Rel. 1913, 38.

3 Moore, Extradition, I, § 8; also Biron & Chalmers, Extradition, 1–14.

ment. Such is the position taken by the judicial and political departments of the United States. Nevertheless the necessity for extradition among civilized States is so evident, and the conclusion of treaties to that end so habitual, that the persistent refusal of a member of the family of nations to enter into any extradition convention with any other member might be looked upon as betokening unfriendly conduct.2

b

Extradition without Treaty

(1)

§ 311. Refusal by the United States.

The almost unvarying practice of the United States has been to decline to surrender fugitive criminals save in pursuance of treaty. It has been frequently declared that the Executive lacks the power under such circumstances to cause the arrest and surrender of the individual.4

1 United States v. Rauscher, 119 U. S. 407, 411-412; also the learned opinion of Tilghman, C. J., in Commonwealth v. Deacon, 10 S. & R., 125; In the Matter of Metzger, 5 How. 176, 188.

Mr. Webster, Secy of State, to Mr. d'Argaïz, June 21, 1842, Webster's Works, VI, 399, 405, quoted in Moore, Dig., IV, 246; Mr. Buchanan, Secy. of State, to Mr. Wise, Sept. 27, 1845, MS. Inst. to Brazil, XV, 119, Moore, Dig., IV, 246; Memorandum of Instructions of Mr. Jefferson, Secy. of State, March 22, 1792, entitled "Heads of Consideration on the Establishment of Conventions between the United States and their Neighbors for the Mutual Delivery of Fugitives from Justice", Am. State Pap., For. Rel., I, 258. 2 Moore, Extradition, I, § 14.

Mr. Bayard, Secy. of State, to Mr. Davie, May 29, 1886, 160 MS. Dom. Let. 354, Moore, Dig., IV, 252; Terlinden v. Ames, 184 U. S. 270, 289, citing Moore, Extradition, I, 21; United States v. Rauscher, 119 U. S. 407.

Mr. Jefferson, Secy. of State, to the President, Nov. 7, 1791, MSS. Department of State, Moore, Extradition, I, 22; Wirt, Atty.-Gen., 1 Óps. Attys.Gen., 509, 521; Legaré, Atty.-Gen., 3 Ops. Attys.-Gen., 661; Report of Mr. Frelinghuysen, Secy. of State, to the President, Feb. 13, 1884, S. Ex. Doc. 98, 48 Cong., 1 Sess., Moore, Dig., IV, 251; Mr. Gresham, Secy. of State, to Mr. Sousa Roza, June 5, 1895, MS. Notes to Portugal, VII, 171, Moore, Dig., IV, 252; Mr. Olney, Secy. of State, to Mr. Ransom, Minister to Mexico, Dec 13, 1895, For. Rel. 1895, II, 1008 Moore, Dig., IV, 252; Mr. Day, Secy. of State, to Mr. Viso, May 26, 1898, MS. Notes to Argentine Legation, VII, 29, Moore, Dig., IV, 252.

See Case of Arguelles, who was surrendered in 1864 to Spain by executive order. Moore, Extradition, I, § 27.

The immigration laws of the United States, providing for the deportation of fugitives who have been convicted of crime, are regarded as inapplicable in cases where the individual is merely charged with the commission of an offense. Mr. Bacon, Acting Secy. of State to the Swiss Minister, March 16, 1907, For. Rel. 1907, II, 1044. See, also, Moore, Dig., IV, 259.

Compare case of the extradition and deportation of an individual from Costa Rica to the United States as an act of courtesy in 1913, For. Rel. 1913, 330332.