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The negative doctrine, that, independent of special compact, no State is bound to deliver up fugitives from justice upon the demand of a foreign State, was maintained at an early period by the United States government, and is confirmed by a considerable preponderance of judicial authority in the American courts of justice, both State and Federal.
The Constitution of the United States provides, (art. 4, s. 2,) that “a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of thc crime."
By the 10th article of the treaty concluded at Washington on the 9th August, 1842, between the United States and Great Britain, it was “ agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all persons, who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other: Provided, That this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had been there committed; and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and
1 See Mr. Jefferson's Letter to M. Genet, Sept. 12, 1793. The decision of Mr. Chancellor Kent, in re Washburn, Johnson's Ch. Rep. vol. iv. p. 166, is counterbalanced in that of Chief Justice Tilghman, in Respublica v. Deacon, Sergeant & Rawle's Rep. vol. x. p. 125; by that of Mr. Chief Justice Parker, in Respublica v. Green, Massachusetts Rep. vol. xvii. pp. 515-548; and by the judgment of the Supreme Court of the United States, in Holmes v. Jennison, Peters's Rep. vol. ziv. p. 540.
considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitives. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.".
By the convention concluded at Washington on the 9th November, 1843, between the United States and France, it was agreed:
« Art. 1. That the high contracting parties shall, on requisitions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other: Provided, That this shall be done only when the fact of the commission of the crime shall be so established, as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial, if the crime had been there com. mitted.
6 Art. 2. Persons shall be so delivered up who shall be charged, according to the provisions of this convention, with any of the following crimes, to wit: murder, (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning) or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzlement by public officers, when the same is punishable with infamous punishment.
"Art. 3. On the part of the French government the surrender shall be made only by authority of the Keeper of the Seals, Minister of Justice; and on the part of the Government of the United States, the surrender shall be made only by the authority of the Executive thereof.
Art. 4. The expenses of any detention and delivery, effected in virtue of the preceding provisions, shall be borne and defrayed by the government in whose name the requisition shall have been made.
"Art. 5. The provisions of the present convention shall not
be applied in any manner to the crimes enumerated in the second article, committed anterior to the date thereof, nor to any crime or offence of a purely political character.”
The following additional article to the above convention was concluded between the contracting parties at Washington on the 24th February, 1845, and subsequently ratified.
“ The crime of robbery, defining the same to be the felonious and forcible taking from the person of another, of goods or money, to any value, by violence or putting him in fear; and the crime of burglary, defining the same to be, breaking and entering by night into a mansion-house of another, with intent to commit felony; and the corresponding crimes included under the French law in the words vol qualifié crime, not being embraced in the second article of the convention of extradition concluded between the United States and France on the 9th of November, 1843, it is agreed by the present article, between the high contracting parties, that persons charged with those crimes shall be respectively delivered up, in conformity with the first article of the said convention; and the present article, when ratified by the parties, shall constitute a part of the said convention, and shall have the same force as if it had been originally inserted in the same.”
In the negotiation of treaties, stipulating for the extradition of persons accused or convicted of specified crimes, certain rules are generally followed, and especially by constitutional governments. The principle of these rules are, that a State should never authorize the extradition of its own citizens or subjects, or of persons accused or convicted of political or purely local crimes, or of slight offences, but should confine the provision to such acts as are, by common accord, regarded as grave crimes. (a)
1 Ortolan, Régles Internationales de la Mer, t. i. p. 340.
(a) [The treaty of extradition between Great Britain and France, of February 18, 1843, applies to murder, defining it as in the treaty of the latter with the United States, - to an attempt to commit murder, forgery, and fraudu. lent bankruptcy. Annual Register, 1843, p. 470. Fraudulent bankruptcy excepted from the treaties of extradition, made by the United States, is included generally among the crimes provided for in the conventions between European powers. As to political refugees, England has never permitted them to be embraced in such treaties, nor is their expulsion, at the demand of their own governments, within the policy of her alien acts. Lord Palmerston declared, that “any such demand would be met with a firm and decided refusal. It is,”
The delivering up by one State of deserters from the military or naval service of another also depends entirely upon mutual comity, or upon special compact between different nations. (a)
said he,“ obvious that it must be so, because no such measure could be taken by the government of this country, without fresh powers by act of Parliament, and no government could apply for such a power with any chance of success, inasmuch as no alien bill, I believe, either in former periods or in the course of this century, has been passed, ever giving to the government the power of expelling foreigners, except with reference to considerations connected with the internal safety of this country. The British government has never undertaken to provide for the internal safety of other countries. . It is sufficient for them to have the power to provide for the internal safety of their own.” Hansard's Parliamentary Debates, vol. 124, p. 805.
Treaties of extradition do not apply to political offences; but in 1849 a demand was made by Russia and Austria on Turkey for the delivery up of the Poles and Hungarians, who had escaped into the Sultan's dominions, and on his refusal Russia and Austria suspended all diplomatic intercourse with the Porte, but ultimately the two emperors receded from their demands. Annual Reg. 1849. p. 342. The grounds of these pretensions are referred to, and the treaty of Kutschouc-Kaynardgi of 1774, with Russia, and of Belgrade, between the Porte and Austria, examined, in the discussions connected with the affair of Martin Koszta. See Cong. Doc. H. of R. 33d Cong. 1 Sess. Ex. Doc. 91, p. 34, 45.]
1 Bynkershoek Quæst. Jur. Pub. lib. i. cap. 22. Note to Duponceau's Transl. p. 174.
(a) [Since the publication of this treatise, the treaty of 20th December, 1849, has been concluded between the United States and the King of the Hawaiian islands, the 14th article of which contains the same provisions as the treaty with England, 1842, in relation to the extradition of criminals, (U. S Stat. at Large, vol. ix. p. 981.) A treaty of this kind was also made in 1852, at Washington, between the United States and Prussia, acting in her own behalf, and in behalf of several of the German States, viz., Saxony, Electoral Hesse, Ducal Hesse, Saxe-Weimar-Eisenach, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha, Brunswick, Anhalt-Dessau, Anhalt-Bernburg, Nassau, Schwarzburg-Sondershausen, Schwarzburg-Rudolstadt, Waldeck, Reuss, elder and junior branch, Lippe, Hesse-Homburg, and the free city of Frankfort. Differing from the extradition treaties which the United States had made with England and France, it provides that none of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention. For this provision it recites as a reason, “ that whereas the laws and constitution of Prussia and of the other German States, parties to this 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.” When a person accused of any of the offences enumerated in the treaty, shall have committed a new crime in the territory, where he has sought an asylum, he shall not be
A criminal sentence pronounced under the municipal $ 14. Exlaw in one State can have no direct legal effect in another. If it is a sentence of conviction, it cannot be tion of a executed without the limits of the State in which it is sentence.
delivered till he has been tried and punished or acquitted. There is, also, a provision that the stipulations of the convention shall be applied to any other State of the Germanic Confederation, which may thereafter declare its accession thereto. The crimes enumerated in the convention, and on account of which fugitives are to be delivered up on mutual requisitions, by their governments, or their ministers, officers, or authorities, respectively made, are murder, assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, or the fabrication or circulation of counterfeit money, whether coin or paper money, or the embezzlement of public moneys, committed within the jurisdiction of either party. Treaties of the United States, 1854, p. 98.
An act of Congress for giving effect to these treaty stipulations with foreign governments was approved on the 12th of August, 1848. It vests the judges of the Supreme Court of the United States, the district judges, and the commissioners appointed for the purpose by any of the United States courts, and also the judges of the several State courts, upon complaint made on oath or affirmation, with power to arrest persons charged with offences falling within the provisions of any of the treaty stipulations; and if, on hearing the testimony, it be deemed sufficient
to sustain the charge under the provisions of the treaty, it shall be the duty of the · judge or commissioner to certify the same to the Secretary of State with all the testimony taken before him, that a warrant may issue on the requisition of the proper authorities of the foreign government, and the judge or commissioner shall issue his warrant for the commitment of the person charged to a proper jail till the surrender is made. The Secretary of State is authorized, under his hand and seal of office, to order such offenders to be delivered to such persons as the foreign government may authorize to receive them. U. S. Stat. at Large, vol. ix. p. 302. In a case under the British treaty the question came before the Supreme Court of the United States, whether a judge or commissioner could proceed without the previous authorization of his own government, and whether the agents of a foreign government have a right to call on our judicial officers to act, in advance of authority from the President. There was a diversity of views on this point among the members of the court, though a majority were, on other grounds, against entertaining an appeal from the decision of the commissioner, or granting an original writ of habeas corpus. By the judges, who sustained the action of the commissioner, independently of any initiatory proceeding on the part of the Executive, it was maintained :
“ That an executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that the executive act must be performed through the Secretary of State by order of our Chief Magistrate, representing this nation. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender.