THE GENERAL PRINCIPLE

[$ 326 the standard of interpretation; secondly, concerning the sources of interpretation.1 Thus, in case of a dispute, proof that at the time of negotiation the contracting parties did in fact understand that a certain term had a particular signification, whatever that may be, should be decisive.2 The observance by the courts of so-called rules of construction is not believed to be in defiance of this requirement. It simply indicates that, in the absence of evidence to the contrary, a single reasonable inference must be deduced from the conduct of the parties as expressed in their agreement. It does not signify that evidence showing a contrary understanding should be rejected or unheeded. When, however, under similar circumstances, there is habitual failure to offer such evidence, rules of construction become more certain of application, and their true nature is obscured by reason of the frequency with which they are observed.3

When the municipal laws of a contracting State establish the procedure to be followed in extradition cases, in order to facilitate the operation of its treaties, it must be inferred that the requirements of those laws were had in contemplation at the time of negotiation, and that, in the absence of evidence to the contrary, there has been no attempt to nullify them by an undertaking inconsistent therewith. Thus, it is generally believed that the extradition treaties of the United States, however differing in scope and phraseology, are always concluded with reference to the existing Acts of Congress, and are therefore to be construed in harmony therewith, and that the agreements necessarily indicate the construction placed upon the local laws by the Department of State.1

The Supreme Court of the United States is emphatic in its opinion that there should be imputed to the contracting parties the intention that a technical non-compliance with some formality of criminal procedure should not be allowed to stand in the way of the discharge of a contractual obligation expressed in an extradition treaty."

1 Interpretation of Treaties, infra, § 530; also Wigmore, Evidence, IV, 3470. 2 This is substantially the position taken by the United States as to the interpretation of its extradition treaty with Italy, of Feb. 8, 1868. See Moore, Extradition, I, § 141.

3 It may be observed that under certain circumstances a national court, as distinguished from an international tribunal, may feel itself fettered in the task of interpretation by the position taken by the political department of its own government, even subsequent to the time of negotiation. See Charlton v. Kelly, 229 U. S. 447, 476. Compare, Ex parte Charlton, 185 Fed. 880, 886.

4 Johnson v. Browne, 205 U. S. 309.

5 Grin v. Shine, 187 U. S. 181, 184, where Brown, J., speaking for a unani

Where a treaty lacks any specific reference to the matter, it is generally believed, as a reasonable rule of construction, that the agreement should take effect from the date of signature, and thus operate retroactively.1

(b)

§ 327. Conviction Par Contumace.

The agreement expressed in numerous conventions 2 to deliver up persons convicted of crimes is interpreted both by the political and judicial departments of the United States as applicable solely mous Court declared: "In the construction and carrying out of such treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent. Foreign Powers are not expected to be versed in the niceties of our criminal laws, and proceedings for a surrender are not such as put in issue the life or liberty of the accused. They simply demand of him that he shall do what all good citizens are required, and ought to be willing to do, viz., submit themselves to the laws of their country. Care should doubtless be taken that the treaty be not made a pretext for collecting private debts, wreaking individual malice, or forcing the surrender of political offenders; but where the proceeding is manifestly taken in good faith, a technical noncompliance with some formality of criminal procedure should not be allowed to stand in the way of a faithful discharge of our obligations. Presumably at least, no injustice is contemplated, and a proceeding which may have the effect of relieving the country from the presence of one who is likely to threaten the peace and good order of the community, is rather to be welcomed than discouraged.'

See, also, Benson v. McMahan, 127 U. S. 457, 466-467; Wright v. Henkel, 190 U. S. 40, 57; Pierce v. Creecy, 210 U. S. 387, 405. Holmes, J., in the opinion of the Court in Glucksman v. Henkel, 221 U. S. 508, 512, declared: "It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time. For while of course a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender." Also United States v. Greene, 146 Fed. 766.

1 Moore, Extradition, I, § 86, citing In re Angelo de Giacomo, 12 Blatchf. 391, also Mr. Evarts, Secy. of State, to Mr. Seward, Jan. 30, 1880, MSS. Dom. Let.

See, also, Mr. Hay, Secy. of State, to Mr. Aspiroz, Mexican Minister, No. 17, July 11, 1899, MS. Notes to Mexican Legation, X, 469, Moore, Dig., IV, 269, concerning date of taking effect of the extradition treaty with Mexico, Feb. 22, 1899.

MOST-FAVORED-NATION CLAUSE. It is generally believed that extradition treaties do not fall within the most-favored-nation clause. Mr. Cush

ing. Atty.-Gen., 6 Ops. Attys.-Gen., 148, 155; Moore, Dig., V, 311.

EXPENSES. Every treaty of extradition to which the United States is a party contains a provision that the expenses of extradition shall be borne by the demanding government, and it is the practice for the demanding government to defray the expenses of the proceedings whether the fugitive is eventually surrendered or not." Frederick Van Dyne in Cyc. Law & Proc., XIX,

79.

See, for example, Art. I of convention with Italy, March 23, 1868, Malloy's Treaties, I, 967; also Art. I of treaty with San Marino, Jan. 10, 1906, id., II, 1598.

AREAS COVERED BY TREATY

[§ 328 to a fugitive whose conviction took place while he was in the custody of the demanding government.1 In case the trial and conviction are subsequent to the escape of the accused, so that the judicial decree is par contumace, he is regarded as one merely charged with the commission of the crime. Hence in the judicial proceedings following the requisition for his surrender, such evidence of criminality must be offered as is required in any case of one charged with the commission of an extraditable offense.2

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§ 328. Scope of Treaties with Respect to Areas Covered. The extradition treaties of the United States commonly declare that a person whose surrender may be demanded shall be either charged with or convicted of an offense committed in the "jurisdiction" of one of the contracting parties, and who seeks an asylum or who may be found within the "territories" of the other.3

The term jurisdiction appears to have been employed to designate any place lawfully subject to the control for purposes of jurisdiction of the demanding State at the time when the act was committed, such as a public vessel, or a merchant vessel on the high seas, as well as the national domain." On the other hand,

5

1 Mr. Blaine, Secy. of State, to the Minister of the Netherlands, May 6, 1889, relative to the Case of C. E. Plugge, Moore, Extradition, I, 133; telegram of the Acting Secretary of State, to Mr. Leishman, Ambassador to Turkey, Oct. 10, 1907, For. Rel. 1907, II, 1070. See, also, Ex parte Fudera, 162 Fed. 591, in which the learned judge cites Moore, Extradition, I, § 102; "Report of a Recent Extradition Case, re Macaluso", Ill. Law R., VII, 237; Ex parte La Mantia, 206 Fed. 330.

That this requirement has not always been appreciated by demanding governments is apparent from Ex parte Fudera, 162 Fed. 591, and Ex parte La Mantia, 206 Fed. 330.

3 See, for example, Art. I convention with France, Jan. 6, 1909, Charles' Treaties, 33. President Adams, to Mr. Pickering, Secy. of State, May 21, 1799, relative to the case of one Nash, alias Robbins, 8 John Adams's Works, 651, Moore, Dig., IV, 281-282; Moore, Extradition, I, §§ 105 and 106, concerning cases respectively of Kent and of Markham.

Mr. Cushing, Atty.-Gen., 8 Ops. Attys.-Gen., 73, 84. See, also, Mr. Buchanan, Minister to England, to Mr. Marcy, Secy. of State, Aug. 3, 1855, 67 MS. Despatches from Great Britain, Moore, Dig., IV, 282.

In a case of concurrent jurisdiction such as, for example, where an offense was committed on a merchant vessel of the demanding State on the high seas, resulting in the death of the victim after the vessel reached a port of the State on which requisition was made, the latter would doubtless be justified in asserting itself the right to prosecute the offender, and in declining to surrender him, if its authorities saw fit to take such a course. Mr. Fish, Secy. of State, to Mr. Watson, Aug. 15, 1874, MS. Notes to Great Britain, XVI, 413, Moore, Dig., IV, 281. See, also, Sternaman v. Peck, 83 Fed. 690. Compare situation in case of Peter Lynch, Moore, Extradition, I, § 107.

See the decision of Lowell, J., in In re Taylor, 118 Fed. 196, and the comment thereon in Moore, Dig., IV, 280.

an offense perpetrated by a national of a demanding State in foreign territory not subject to its control, is not believed to have been committed within the jurisdiction of that State, even though it asserts the right to punish the offender for his misconduct as an act in defiance of its own commands.1

The term "territories" as descriptive of the place where a fugitive seeks asylum or is found, is regarded as referring to a place subject to the control of the State upon which requisition is made, such as its own domain, or foreign territory under its military occupation, or a foreign merchant vessel within its harbors,3 or its own public vessels. Difficulties that may arise respecting the surrender of the fugitive when he is found on a public vessel,1 or concerning his arrest when he is on board a foreign merchant vessel in a port of the State upon which requisition is made,5 are unrelated to the question as to whether the case falls within the scope of a particular treaty.

1 Williams, Atty.-Gen., 14 Ops. Attys.-Gen., 281, re Case of Carl Vogt; compare In re Stupp, 11 Blatchf. 124.

"It has been announced by the Department of State that an offense committed in a country where extraterritorial jurisdiction is exercised by foreign Powers is not committed within the jurisdiction of such Powers in the sense of the extradition treaties, so as to give the government of the country of which the offender is a citizen or subject the right to demand his surrender from the territory of the United States," Moore, Extradition, I, § 108, quoting Mr. Cadwalader, Acting Secy. of State, to Mr. Bingham, American Minister to Japan, Aug. 18, 1875, For. Rel. 1875, II, 821.

2 Report of Jan. 9, 1900, Magoon's Reports, 523, Moore, Dig., IV, 285; letter of the Secy. of War, Aug. 17, 1900, quoted in Mr. Hill, Acting Secy. of State, to Mr. Aspiroz, Mexican Minister, No. 101, Sept. 4, 1900, MS. Notes to Mexican Legation, X, 537, Moore, Dig., IV, 285.

It is not believed that the term "territories" has reference to a foreign country where rights of extraterritorial jurisdiction are exercised by the State on which requisition is made. Mr. Hunter, Second Assist. Secy. of State, to Mr. G. F. Seward, Consul-General, Aug. 31, 1874, For. Rel. 1874, 338; Mr. Cadwalader, Assist. Secy. of State, to same, Oct. 23, 1874, id., 347; Moore, Extradition, I, § 109.

3 In re Newman, 79 Fed. 622.

Mr. Blaine, Secy. of State, to Mr. Denby, Minister to China, No. 680, Dec. 7, 1891, For. Rel. 1892, 74, Moore, Dig., IV, 283.

5 Mr. Lincoln, Minister to England, to Mr. Blaine, Secy. of State, No. 480, June 24, 1891, MS. Despatches from England, Moore, Dig., IV, 284.

DOMESTIC LEGISLATION FOR EXTRADITION TO FOREIGN TERRITORY UNDER MILITARY OCCUPATION. The enactment by a State of a law (such as the amendment by the Act of Congress of June 6, 1900, 31 Stat. 656, of Rev. Stat. § 5270) providing for the arrest within its territory of persons found therein after having violated certain criminal laws within foreign territory occupied by or under the control of the State, and establishing appropriate procedure for the surrender of such persons to the military governor of such territory, is merely an assertion of a right of jurisdiction by the sovereign in actual control of the place of refuge, and that also where the crime was committed. It is not based upon treaty. Nor is it responsive to any international obligation. Such legislation is essentially domestic in character. See Neely v. Henkel, 180 U. S. 109, in which the Act of June 6, 1900, was applied

IN GENERAL

(11)

§ 329. Fugitives from Justice.

1

[$ 330

The treaties of the United States are deemed to apply “not only to persons seeking an asylum here professedly, but to such as may be found in the country." The reasons which may induce offenders to enter are unimportant.2 There is, however, a disposition on the part of the United States to make the requirement that the person found within its territories shall have entered therein after having been himself within the "jurisdiction" of the State demanding his surrender. Consequently, a person who while in the United States and without leaving its domain, participated in a conspiracy to commit murder in that of a foreign State, within whose territory the conspiracy was carried into effect, would not be regarded as liable to extradition upon the demand of that State.3

d

Some Aspects of Procedure in the United States

330. In General.

(1)

The design of the statutory law of the United States in relation to extradition has been to facilitate rather than hinder the operation of treaties which might be concluded. The procedure estabto Cuba, while occupied by the United States. See, also, Mr. Hay to Mr. von Mumm, Oct. 25, 1899, For. Rel. 1899, 318-319, Moore, Dig., IV, 265–266.

The Panama Canal Act of August, 1912, extends the operation of the extradition treaties of the United States to the territory embraced within the Isthmian Canal Zone. Session Laws, 62 Cong., 2 Sess., 1912, p. 569.

1 The language in the text is that employed in the caption of the opinion by Mr. Cushing, Atty.-Gen., 8 Ops. Attys.-Gen., 306, cited in Moore, Dig., IV, 286.

See In re Ezeta, 62 Fed. 972, 978.

Mr. Hay, Secy. of State, to Baron Fava, Italian Ambassador, No. 654, March 8, 1901, MS. Notes to Italian Legation, IX, 508, Moore, Dig., IV,

286.

The legislation of the United States is embraced in Rev. Stat. §§ 52705279, constituting title LXVI, and in the Act of Aug. 3, 1882, Chap. 378, 22 Stat. 215, in the Act of June 6, 1900, Chap. 793, 31 Stat. 656, and in that of June 28, 1902, Chap. 1301, 32 Stat. 475. An Act of Feb. 6, 1905, Chap. 454, 33 Stat. 698, made application of the provisions of the Revised Statutes for the delivery of fugitives as between a foreign country and the Philippine Islands. The existing statutory law is embraced in U. S. Comp. Stat. 1918, §§ 10110-10128.

See, also, the British Extradition Act of August 7, 1870, 33 & 34 Vict. c. 52; also Canadian Extradition Act, of 1906, chap. 152 R. S. and the amendment thereof of May 19, 1909, 8 & 9 Edw. 7, c. 14.