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 comBritain had recognized as belligerent, and that their act was not triable as a crime. The magistrate held that their act was primâ facie the crime of piracy, and that the defence of belligerent authority was one to be made at their trial, and held them for extradition. A writ of habeas corpus was issued from the Queen's Bench, May, 1864; and, on the return, the cause was elaborately argued by counsel instructed respectively by the United States Minister, and by the agent of the Confederate States, who came forward to adopt the act. The court were unanimous in the opinion that there was sufficient evidence to warrant the magistrate in holding the prisoners, and that their defence of belligerency was properly to be made on their trial; and that the act, if a crime and not an act of war, was piracy jure gentium, and triable in England. The only question then was, whether it was within the legal authority of the magistrate to deliver up a person for a crime which each country had jurisdiction to try. The majority of the court, the Lord Chief Justice dissenting, held that the case did not come within the terms of the treaty and of the act of 6 & 7 Victoria, ch. 76, providing for its execution. Justices Crompton, Blackburn, and Shee held that the treaty was intended to apply only to crimes justiciable by one country, and not by the other. They drew this conclusion from the words of the treaty, "committed within the jurisdiction of either," ... "seek an asylum, or shall be found within the territories of the other;" from the preamble of the Act, "committed within the jurisdiction of the United States," and "found within the territories of Her Majesty," and the words, "fugitive," "deliver up to justice;" and from the probability that the contracting parties would desire to provide only for cases which the nation making the demand had jurisdiction to try and the other nation had not. It was admitted that the word "piracy" in the treaty, if it could mean only piracy jure gentium, triable anywhere, would be against this construction; but it was held that the word was introduced to meet acts made piracy by the statute law of America, not being so jure gentium, and of which the United States would have exclusive jurisdiction, as by the acts of 30 April, 1790, and 5 May, 1820. The Lord Chief Justice Cockburn was of opinion that the treaty and statute of 6 & 7 Victoria were not necessarily confined to crimes of which the nation making the demand had exclusive jurisdiction; that it might be applicable, for instance, to certain offences committed in a foreign territory by British subjects against other British subjects, or against the State, which either nation could try, but which, in respect of testimony or otherwise, could be more conveniently and justly tried in the country where the act was done. "Within the jurisdiction" did not necessarily mean "exclusive" jurisdiction; and, if it did, it referred to the area over which the laws of the particular State prevail; and that a ship is constructively such a place, and within the jurisdiction of the State. He saw no objection to including in the treaty piracy jure gentium, for the like reasons of convenience and justice. Piracy jure gentium would be committed "within the jurisdiction," not exclusive, of the demanding nation, if committed on board one of its vessels at sea. Professor Abdy, in his recent edition of Kent's Intern. Law, 441-2, considers the opinion of the Lord Chief Justice to have been the more correct interpretation of the statute and treaty.]—D.

mitted; 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 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." 75

[75 Judicial Construction of Extradition Treaties.—The points raised and decided in the Gerity Case are given in note 74, supra. The point actually decided was, that the word "piracy," in the Ashburton treaty, did not include piracy jure gentium, but was confined to acts made piracy by the municipal law. The main reason given was, that a nation could not be presumed to promise extradition of criminals whom it had itself jurisdiction to try, equally with the nation demanding extradition.

Windsor's Case. This case was before the Queen's Bench, April 27, 1865. Windsor was arrested for extradition under the treaty, as a person "charged with forgery” in New York. The acts done by him were false entries, for the purpose of defrauding, in books of account of a bank, kept by him as its clerk. By a statute of New York, it is provided that a person convicted of such acts shall be "adjudged guilty of forgery." The court was satisfied that there was sufficient evidence of his guilt under that statute to require extradition, if the offence came within the treaty; and it was conceded by the counsel for the requisition that the acts done would not be forgery by the common law, or by the statute law of England, or by the laws of the American States generally. The only question was, whether the treaty providing for extradition of persons charged with "forgery" covered this case. The Lord Chief Justice said: "The act is restricted to cases which have the essential and substantial elements of the offences specified, and according to the law of both countries; and the mere fact that an act which, according to the general law of either country, has not the character of a particular offence, is treated as such by the law of one of them, does not bring the case within such a treaty as this. We must assume that the terms employed are used in a sense which they would have in the law of both countries, and not in a sense wholly peculiar to some local law in one of them." Mr. Justice Blackburn said: "It must be taken that the terms were used in a sense common to both parties to the treaty. The mere fact that the law of one country, or of one part of it, described an act as being an offence which, in its own nature, in any sense common to both countries, it was not, did not bring the case within the treaty. This act was not really forgery; and what the State of New York had enacted was, that it should be punished as forgery." Mr. Justice Shee being of the same opinion, the prisoner was released.

Anderson's Case. - Anderson was a slave by the law of Missouri, and killed a white citizen of that State who endeavored to arrest him while he was making his escape from Missouri. By the law of Missouri, any citizen may arrest a slave found beyond

§ 118. 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 committed.

limits without a pass. He succeeded in reaching Canada, and was demanded, under the treaty, as a person "charged with murder." The objection made was, that the act done by Anderson was not murder by the law of England or the common law, inasmuch as, slavery not being allowed by those laws, the killing of a person who attempted to reduce another to slavery, or to retain him in slavery by force, was justifiable or excusable. Reliance was placed especially on the language of the tenth article of the treaty, — “provided that this [extradition] 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." The majority of the judges of the Queen's Bench of Upper Canada sustained the requisition; while the Court of Common Pleas of Canada held that the act did not come within the treaty, and discharged the prisoner. The principle, therefore, has had no authoritative decision.

The question is an interesting one. Assuming that the offence charged must have the substantial elements of that offence by the general law of both countries, still Missouri had no new or peculiar law of murder. The definition of the offence was the same there as in Canada; and the same general rules of evidence and instructions to the jury would be applied to the facts in each country. In each, the rule would be, that the knowingly and intentionally killing by the prisoner of a person who had a legal right to arrest him, in wilfully resisting the arrest, is murder, in the absence of sufficient provocation to reduce it to manslaughter. The point where the law of the two countries would differ is, as to the right to make the arrest in the particular case, and the consequent illegality of resisting it. The right of the deceased to arrest the prisoner grew out of the slave system; but it was part of the law touching the relations of inhabitants to each other and to the public, which each nation must regulate for itself, and which existed when the treaty was made. If two nations have an identical code as to murder, and as to the mode of trial and the rules of evidence, there may yet be great diversities in the systems of the two nations, resulting in rights to use force, or to resist the use of force, in one, directly opposite to what would exist in the other. Can this state of things be fairly held to constitute a difference in the substantial elements of the offence in the laws of the two countries? Does it not rather address itself to the policy of the two countries in making treaties of reciprocal extradition, calling for exceptions or qualifications? As to the clause of the

"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

tenth article of the Ashburton treaty, there can be little doubt that it relates to the quantum of proof. It is found, in the same words, in Jay's treaty of 1794, art. 27. It is inserted to meet the question how much proof the examining magistrate is entitled to require. It might have been contended that the proof must be such as would be required to convict, and such as to remove all reasonable doubt of guilt; or that it must be such as to create a preponderance of belief, as in a civil suit; or that the showing of that probable cause to believe guilt would be sufficient, which, by the rule of the common law, authorizes an examining magistrate to commit for trial. Instead of attempting to settle and define these degrees of proof, the parties adopted the rule which the country called upon to make the surrender should have established for its examining magistrates, in case of offences committed within its jurisdiction. In Anderson's case, the facts were sufficiently proved, and the only question was one lying behind the words of the treaty. Supposing an examining magistrate in Canada, in case of an offence committed there, is satisfied that the prisoner before him intentionally killed a person who was attempting to exercise an act of force upon him, and the question whether the homicide was murder or self-defence depended upon the relative rights of the parties to do or resist the attempted act, the magistrate would commit him for trial, unless the law in that respect was settled and clearly in favor of the prisoner. The doubt as to the law, in a clear state of facts, leaves that condition of things denominated probable cause to believe the prisoner guilty, — in other words, leaves a state of things proper for judicial investigation. If the same magistrate, sitting for extradition in a clear case of homicide, should be satisfied that the law respecting homicide was identical in the two countries, but that there would be a right to do the act attempted in Missouri and a right to resist it in Canada, could he refuse to commit the prisoner on the sole ground that there was a lack of sufficient evidence to establish a probable cause? Suppose the law of a country to authorize corporal punishment of a seaman by the master of a vessel, and the seaman commits murder in resisting an attempt to inflict it in a proper case, and, escaping to another country, is demanded under a treaty of extradition, can the latter country refuse the surrender on the ground, that, while killing in resistance to lawful force is a crime in each country, the force attempted in the particular case was not lawful by the law of the latter country ?] — D.

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."

§ 119. 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." 76

§ 120. 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 principal of these rules are, that a State should never authorize the extradition of its own citizens or subjects,77

[76 The supplemental convention between France and the United States of Feb. 10, 1858, extends the duty of extradition to principals, accessories, and accomplices in the following crimes: "Forging or knowingly passing or putting in circulation counterfeit coin or bank-notes or other paper current as money, with intent to defraud any person or persons; embezzlement by any person or persons, hired or salaried, to the detriment of their employers, when these crimes are subject to infamous punishment."]-D.

[77 Extradition by a State of its own Subjects. Territoriality of Criminal Law. - The obligation or willingness of a State to surrender its citizens who are charged with crimes committed abroad, and have sought refuge in their own country, is affected by the consideration whether such State punishes its citizens for crimes so committed.