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.1 (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. Extraterritolaw in one State can have no direct legal effect in anrial operaother. 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.

criminal

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.

pronounced, upon the person or property of the offender; and if he is convicted of an infamous crime, attended with civil dis

"The treaty with Great Britain is equally binding on us as the act of Congress, and it likewise confers jurisdiction and authority on the judges and magistrates of the respective governments, to issue warrants for the apprehension of fugitives, and for hearing and considering the evidence produced against them; and also provides, that the committing magistrate shall certify as to the sufficiency of the evidence, to the executive authority, so that a warrant of surrender may issue. Congress was scrupulously careful, neither to limit or extend the treaty stipulations. According to the terms of the statute no doubt is entertained that the judicial magistrates of the United States, designated by the act, are required to issue warrants and cause arrests to be made, at the instance of the foreign government, on proof of criminality, as in ordinary cases when crimes are committed within our own jurisdiction, and are punishable by the laws of the United States."

On the other hand, it was said:

"No demand was made upon this government, by the government of Great Britain claiming the surrender. This government was passed by, and the requisition made by the consul, directly upon the magistrate, on the ground, as contended for, namely, that the consent or authority of the Executive is unnecessary to warrant the institution of the proceedings; and, in support of their propriety and regularity, the position is broadly taken, and without which the proceedings cannot be upheld, that according to the true interpretation of the treaty, any officer of Great Britain, however inferior, properly represents the sovereign of that country, who may choose to prosecute the alleged fugitive in making the requisition, and is entitled to the obedience of the judicial tribunals for that purpose, and if sufficient evidence is produced before them to arrest and commit, that a surrender may be made; and that in this respect, such officer is put on the footing of any of the prosecuting officers of this government, who are authorized to institute criminal proceedings for a violation of its laws; that the country is open to him, throughout the limits of the Union, and the judicial tribunals bound to obedience on his requisition and proofs, to make the arrest and commitment. This is the argument. Now, upon recurring to the terms of the treaty, it will be seen, that no such stipulations were entered into, or intended to be entered into, by either government, or any authority conferred to justify such a proceeding. The two nations agree that upon 'mutual requisition by them, or their officers or authorities respectively made,' — that is on a requisition made by the one government, or by its ministers or officers properly authorized upon the other- the government, upon whom the demand is thus made, shall deliver up to justice all persons charged with the crimes, as provided in the treaty, who shall have sought an asylum within her territories. In other words, on a demand, made by the authority of Great Britain upon this government, it shall deliver up the fugitive; and so in respect to a demand by the authority of this government upon her. This is the exact stipulation entered into when plainly interpreted. It is a compact between the two nations in respect to a matter of national concern

qualifications in his own country, such a sentence can have no legal effect in another independent State.1

But a valid sentence, whether of conviction or acquittal, pro

the punishment of criminal offenders against their laws--and where the guilty party could be tried and punished only within the jurisdiction whose laws have been violated. The duty or obligation entered into, is the duty or obligation of the respective nations, and each is bound to see that it is fulfilled, and each is responsible to the other in case of a violation. When the casus fœderis occurs, the requisition or demand must be made by the one nation upon the other. And under our system of government, a demand upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized or even permitted to hold any communication of a national concern. He alone is authorized by the Constitution to negotiate with foreign governments, and enter into treaty obligations binding on the nation; and, in respect to all questions arising out of these obligations, or relating to our foreign relations, in which other governments are interested, application must be made to him. A requisition or demand, therefore, upon this government must, under any treaty stipulation, be made upon the Executive, and cannot be made through any other department, or in any other way." Howard's Reports, vol. xiv. p. 103. In Re Kane.

The general result of this case is, that under the British treaty the proceeding may either commence with a mandate from the President or by a warrant direct from the officer authorized to enforce it. Foreign governments may apply to ours, in the first instance. That course, under the decision of the Supreme Court, is the safest, though it may not be a necessary one; but in either event the subsequent proceedings are under the direction of the examining magistrate, and cannot be controlled by the President. See opinion of Attorney-General, (Mr. Cushing.) August 31, 1853. Washington Union. It had been previously decided that the Supreme Court had no jurisdiction to issue a habeas corpus for the purpose of reversing a decision under the treaty of 1843, with France. Howard's Rep. vol. v. p. 176. In the Matter of Metzger. In England the requisition must always be made through the Executive government, and in treaties of this description the preliminary action of the legislature is there necessary. At the time of the signature of the treaty of 1842, the British Minister stated that the rendition treaty could have no effect in the British dominions in Europe till Parliament acted on it. In Canada it could have an immediate effect. Lord Ashburton to Mr. Webster, August 9, 1842. An act of Parliament, 6 & 7 Vict. c. 76, passed July, 1843, empowers one of the principal Secretaries of State, or the Secretary for Ireland, to issue his warrant, signifying that a requisition had been made, in pursuance of this treaty, and requiring all justices, &c., to aid in apprehending the person charged with the crime, and the same functionaries are the officers to order the delivery of the party to the persons authorized to receive them.] 1 Martens, Précis, &c., liv. iii. ch. 3, § 86. de l'Europe, pt. ii. tit. 1, ch. 2, §§ 64, 65. § 565.

Klüber, Droit des Gens moderne Fœlix, Droit International Privé,