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.

4 Mr. Jefferson, Secy. of State, to the President, Nov. 7, 1791, MSS. Department of State, Moore, Extradition, I, 22; Wirt, Atty.-Gen., 1 Ops. 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, 330– 332.

§ 312. Requests on Grounds of Courtesy.

In view of its practice in refusing to surrender fugitives to foreign States with which extradition treaties have not been concluded, the United States does not demand from such countries the surrender of persons who there seek asylum after having escaped from places under American control. Not infrequently, however, the United States has, under such circumstances, requested the surrender of a fugitive, on grounds of courtesy, making clear at the same time its own inability to reciprocate in granting similar favors.2

§ 313. Policy.

C

Treaties of the United States

(1)

The extradition conventions of the United States, from the Jay Treaty concluded with Great Britain November 19, 1794, down to the present time have, in almost every case, contained the requirement that the surrender of a fugitive should be conditioned upon the production and presentation to the country

1 Mr. Fish, Secy. of State, to Mr. Adee, Chargé, Nov. 3, 1876, MS. Inst. Spain, XVIII, 17, Moore, Dig., IV, 255; Report of Mr. Bayard, Secy. of State, to the President, on McGarigle's Case, Sept. 14, 1887, 17 MS. Rept. Book, 13, Moore, Dig., IV, 256; Mr. Hay, Secy. of State, to the Governor of Porto Rico, June 19, 1900, 245 MS. Dom. Let. 649, Moore, Dig., IV, 257.

2 Mr. Frelinghuysen, Secy. of State, to Mr. Gosling, Dec. 18, 1884, 153 MS. Dom. Let. 459, Moore, Dig., IV, 255; Mr. Olney, Secy. of State, to Mr. Moody, March 7, 1896, 208 MS. Dom. Let. 386, Moore, Dig., IV, 256; also documents relating to extradition of Horace G. McKinley, granted by China in 1907, For. Rel. 1908, 129; documents relating to extradition of William Adler et al., from Honduras in 1908, For. Rel. 1908, 470; documents relating to the detention of the Goldsboro and extradition of Francis G. Bailey et al., from Honduras in 1908, For. Rel. 1908, 474.

In connection with the extradition of Paul Stensland from Morocco in 1906 as an act of grace, it is to be observed that the Government of that country declared that it regarded the authority of the American Minister over his own countrymen, as supreme and unquestionable." Mr. Gummeré, American Minister to the Secretary of State, Sept. 6, 1906, For. Rel. 1906, II, 1161, 1163.

66

Opposing the policy of requesting the extradition of fugitives as a favor, see Cushing, Atty.-Gen., 6 Ops. Attys.-Gen., 85, Moore, Dig., IV, 254; Mr. Hill, Acting Secy. of State, to Mr. Warner, Oct. 6, 1899, 240 Dom. Let. 407, Moore, Dig., IV, 257.

Among recent cases where extradition has been granted as an act of grace, may be noted that of V. Nalbandian (Bulgaria), For. Rel. 1910, 122-128; C. Vandenberg (Honduras), id., 646; Joseph and Jacob Goldberg (AustriaHungary), For. Rel. 1911, 10-11.

of asylum of such evidence of criminality as would, according to the law of the place where the accused might be found, justify his apprehension and commitment for trial. This implies, therefore, that the conduct of the accused must have been such as to violate the criminal laws of the country of asylum. Only upon such a theory could he be there held for commitment and trial.2

The general requirement respecting evidence of criminality necessitates, furthermore, a decision by some authority in the country of asylum as to whether the evidence presented justifies the apprehension and commitment of the accused for trial according to the local law. This involves the exercise of an essentially judicial function.

An

Although the early treaties of the United States made no provision respecting procedure, and although no Act of Congress offered guidance, the weight of opinion sanctioned the view that judicial rather than executive authority should, in the first instance, pass upon the sufficiency of the evidence presented. Act of Congress of 1848, supplemented by later legislation, has since that time provided for the performance of the judicial function by the judicial rather than the executive branch of the Government of the United States. All extradition treaties subsequent

1 An exception is noted in the convention with Uruguay, March 11, 1905, Malloy's Treaties, II, 1825. Notwithstanding the singular omission, it is not believed that the contracting parties contemplated any departure from the existing practice, or a lessening of the requirement respecting the sufficiency of evidence to be presented by a demanding government. Arts. IV and V justify this conclusion.

In his work on extradition, § 77, Professor Moore adverts to the fact that Thomas Pinckney, in his negotiations that resulted in the treaty with Spain of October 27, 1795 (which contained no provisions relative to extradition), declined to accede to the Spanish suggestion that transgressors should be surrendered " 'upon a single demand"; and that he proposed, on the other hand, that any demand should be "supported by testimony of the commission of the crime which should be sufficient in the country to which the fugitive has flown to cause him to be arrested and brought before the tribunals of justice if the crime had there been committed," citing despatches from Madrid, Vol. VI, MSS. Department of State.

2 "The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered a crime by both parties, and as to the offence charged in this case the treaty of 1889 with Great Britain embodies that principle in terms. The offence must be 'made criminal by the laws of both countries." Fuller, C. J., in Wright v. Henkel, 190 U. S. 40, 58.

3 Matter of Metzger, 5 How. 176, 188-189, where the Supreme Court of the United States in 1847 approved the action of the President in referring to the judgment of a judicial representative the evidence offered by the French diplomatic officer to secure the extradition of an individual charged with forgery under treaty with France of November 9, 1843. Also case of Nash under Art. XXVII of the Jay Treaty, November 19, 1794, Wharton's State Trials, 392.

DEVELOPMENT OF THE RULE

[§ 315

thereto have been regarded as having been concluded with reference to and in harmony with the statutory law.1

§ 314. Offenses Generally.

(2)

Since the earliest agreements with England of 1794 and 1842, and with France of 1843 and 1845, there has been a constant and natural increase in the number of offenses made extraditable. Numerous treaties of the twentieth century, such as those with France of 1909, and with Salvador of 1911, are fully responsive to the elaborate and intricate needs of the present time. Thus, for example, among the offenses specified are "the willful and unlawful destruction or obstruction of railroads, which endangers human life", and under certain circumstances, the "breach of trust by a bailee, banker, agent, factor, executor, administrator, guardian, trustee or other person acting in a fiduciary capacity." 2 In the more recent treaties the offenses set forth are described with greater precision and comprehensiveness than in the earlier agreements.3

(3)

Political Offenses

(a)

§ 315. Development of the Rule.

Long before the establishment of international law or of any system of extradition, fugitives were frequently surrendered to the monarchs from whose control they had fled. Surrender was usually induced by the power of the sovereign making the demand. The treatment that might await the fugitive was no deterrent. Hence the return of political offenders bore no resemblance to the modern practice of extradition and was based on a different theory. Consistently with the growth of the idea that no fugi

1 Mr. Bayard, Secy of State, to Mr. Romero, Mexican Minister, Feb. 19, 1889, For. Rel. 1889, 620-621, Moore, Dig., IV, 273.

2 See Convention with France, Jan. 6, 1909, Arts. II, secs. 12 and 7, Charles' Treaties, 34. See, also, editorial comment, Am. J., V, 1060; convention with Honduras, Jan. 15, 1909, Charles' Treaties, 71.

3 In the index to Malloy's Treaties, II, 2448-2449, will be found a list of extraditable crimes contained in treaties of the United States, and references to the conventions in which they are respectively to be found.

4 Albéric Rolin, Les infractions politiques, Rev. Droit Int., 1 ser., XV, 417; Moore, Extradition, Chap. VIII, also id., §§ 5 and 6; Oppenheim, 2 ed., I, 389-392; W. B. Lawrence, Albany Law J., XIV, 85; Biron & Chalmers, 7-12; Bibliography in Clunet, Tables Générales, I, 790–792, 978.