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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.
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 fæderis 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.]
Martens, Précis, &c., liv. iii. ch. 3, § 86. Klüber, Droit des Gens moderne de l'Europe, pt. ii. tit. 1, ch. 2, $$ 64, 65. Fælix, Droit International Privé, $ 565.
nounced in one State, may have certain indirect and collateral effects in other States. If pronounced under the municipal law in the State where the supposed crime was committed, or to which the supposed offender owed allegiance, the sentence, either of conviction or acquittal, would, of course, be an effectual bar (exceptio rei judicate) to a prosecution in any other State. If pronounced in any other foreign State than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity, and of no avail to protect him against a prosecution in any other State having jurisdiction of the offence.
$ 15. Piracy. The judicial power of every State extends to the under the punishment of certain offences against the law of nanations. tions, among which is piracy.
Piracy is defined by the text writers to be the offence of depredating on the seas, without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other.
The officers and crew of an armed vessel, commissioned against one nation, and depredating upon another, are not liable to be treated as pirates in thus exceeding their authority. The State by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of its authority.
The offence of depredating under commissions from different sovereigns, at war with each other, is clearly piratical, since the authority conferred by one is repugnant to the other; but it has been doubted how far it may be lawful to cruise under commissions from different sovereigns allied against a common enemy. The better opinion, however, seems to be, that although it might not amount to the crime of piracy, still it would be irregular and illegal, because the two co-belligerents may have adopted dif
1 See authorities cited in Note to the case of United States v. Smith, Wheaton's Rep. vol. v. 157.
2 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17. Rutherforth's Ins. vol. ïi. p. 595.
tion between di
ferent rules of conduct respecting neutrals, or may be separately bound by engagements unknown to the party.
Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals.?
This proposition, however, must be confined to piracy Distincas defined by the law of nations, and cannot be ex- tivo tended to offences which are made piracy by municipal racy.
Par law of na legislation. Piracy, under the law of nations, may be tions, and
piracy untried and punished in the courts of justice of any nation, der tỉe mu
nicipal staby whomsoever and wheresoever committed; but piracy tutes. created by municipal statute can only be tried by that State within whose territorial jurisdiction, and on board of whose ves. sels, the offence thus created was committed. There are certain acts which are considered piracy by the internal laws of a State, to which the law of nations does not attach the same signification. It is not by force of the international law that those who commit these acts are tried and punished, but in consequence of special laws which assimilate them to pirates, and which can only be applied by the State which has enacted them, and then with reference to its own subjects, and in places within its own jurisdiction. The crimes of murder and robbery, committed by foreigners on board of a foreign vessel, on the bigh seas, are not justiciable in the tribunals of another country than that to which the vessel belongs; but if committed on board of a vessel not at the time belonging, in fact as well as right, to any foreign power or its subjects, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no flag whatsoever, these crimes may be punished as piracy under
1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 17, p. 130, Duponceau's Transl. Valin Commentaire sur l'Ord. de la Marine, tom. ii. p. 236. “The law,” says Sir L. Jenkins, “ distinguishes between a pirate who is a highwayman, and sets up for robbing, either having no commission at all or else bath two or three, and a lawful man-of-war that exceeds his commission.". Works, vol. ï. p. 714.
2 « Every man, by the usage of our European nations, is justiciable in the place where the crime is committed; so are pirates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they may be taken." Sir L. Jenkins's Works, ib.
the law of nations, in the courts of any nation having custody of the offenders.1 Slave The African slave trade, though prohibited by the
municipal laws of most nations, and declared to be y the piracy by the statutes of Great Britain and the United law of nations. States, and, since the Treaty of 1841, with Great Britain, by Austria, Prussia, and Russia, is not such by the general international law, and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist, in time of peace, independently of special compact.2
The African slave trade, once considered not only a lawful but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European States, is now denounced as an odious crime, by the almost universal consent of nations. This branch of commerce was, in the first instance, successively prohibited by the municipal laws of Denmark, the United States, and Great Britain, to their own subjects. Its final abolition was stipulated by the treaties of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration of the Congress of Vienna, of the 8th of February, 1815, and reiterated by the additional article annexed to the treaty of peace concluded at Paris, on the 20th November, 1815. The accession of Spain and Portugal to the principle of the abolition was finally obtained, by the treaties between Great Britain and those powers, of the 230 September, 1817, and the 22d January, 1815. And by a convention concluded with Brazil, in 1826, it was made piratical for the subjects of that country to be engaged in the trade after the year 1830.
By the treaties of the 30th November, 1831, and 22d May, 1833, between France and Great Britain, to which nearly all the maritime powers of Europe have subsequently acceded, the mutual right of search was conceded, within certain geographical limits, as a means of suppressing the slave trade. The pro
1 Wheaton's Rep. vol. v. pp. 144, 184. United States v. Klintock ; United States v. Pirates.
2 Dodson's Adm. Rep. vol. ii. p. 210. Le Louis. Wheaton's Rep. vol. x. p. 66. La Jeune Eugenie. [The Treaty of 1817, with Spain, was the first one in which the reciprocal right of search was granted.]