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Of the extradition treaties entered into by the United States, twenty-two contain the provision that political offences are not extraditable, though none of them contain a definition of the term. Twenty-three contain a provision that citizens of the state upon which the demand is made are not to be surrendered; as citizens are not excepted in the other treaties, the presumption is that they would be surrendered upon due application. Twenty-four of them contain a clause authorizing the surrendering state to try and punish offences against its own laws before giving effect to the extradition process. In all of them it is expressly stipulated that the sufficiency of evidence as to the commission of the crime for which extradition is demanded shall be determined by the laws of the state in which the criminal has taken refuge.'

Interstate Extradition. The subject of interstate extradition in the United States is regulated by the Federal Constitution, which provides 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 the crime." This provision covers only cases arising within

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This surrender gave rise to attacks upon President Adams, and the speech of Mr. Marshall, afterwards Chief-Justice, is attached as a note to the above report. See Wharton's State Trials, pp. 392456.

In the United States it has been held that a person detained under extradition process, regularly issued under authority conferred by a statute or treaty of the United States, is not subject to release under a writ of habeas corpus.-In re Breen, 73 Fed. Rep. p. 458; In re Newman, 79 Ibid. p. 622; In re Bryant, 80 Ibid. p. 282; In re Otieza y Cortez, Petitioner, 136 United States, p. 330; Benson vs. McMahon, 127 United States, 457;

Fong Yue Ting, 149 United States, pp. 698, 714; Ornelos vs. Ruiz, 161 United States, 502. The contrary rule prevails, however, in England, based upon the statute regulating the practice of extradition (33 and 34 Vict. chap. lii. §§ 3 and 11), which expressly provide that the writ shall issue when there is reason to believe that the accused is a political offender. By section 11 of the same statute the writ is demandable by any person arrested with a view to his extradition, within fifteen days subsequent to his arrest.-See Ornelos vs. Ruiz, 161 United States, 502.

2 Constitution of the United States, § 2, art. 4.

the territorial limits of the United States. The power to surrender fugitives, who, having committed offences within the jurisdiction of a foreign state, have fled to one of the United States for shelter, belongs, under the Constitution, exclusively to the United States.' The practice of extradition between the states of the Federal Union is carried on with nearly as much strictness as is that between foreign nations, and in accordance with similar rules. It has been decided, however, by the Supreme Court of the United States that the term "other crime," as used in the extradition clause of the Federal Constitution, refers to the definition of the offence according to the law of the state in which the crime has been committed.' In this respect the rule of interstate extradition is opposed to

'George Holmes was arrested in the State of Vermont on a warrant or order of the governor of the state, addressed to a sheriff, stating that an indictment had been found against him for murder in Canada, and that as it was fit and expedient that he should be made amenable to the laws of the country, commanding the sheriff to convey him to the border between Canada and Vermont, and deliver him to the Canadian authorities. A habeas corpus was issued by the supreme court, and the prisoner was remanded, and a writ of error taken to the Supreme Court of the United States. The court being equally divided as to the question of jurisdiction, the writ of error was dismissed. The court, however, considered at length the question of the authority of the governor of the State of Vermont to surrender a fugitive criminal, and Chief-Justice Taney, in his opinion, in which Justices Story, McLean, and Wayne concurred, stated, as the conclusion of the majority on this point: "Upon the whole, therefore, my three brothers and myself, after a

most careful and deliberate examination, are of opinion that the power to surrender fugitives, who, having committed offences in a foreign country, have fled to this for shelter, belongs, under the Constitution of the United States, exclusively to the Federal Government, and that the authority exercised in this instance by the governor of Vermont is repugnant to the Constitution of the United States."-Holmes vs. Jennison, 14 Peters, 540. After this opinion Holmes was discharged by the supreme court of Vermont on habeas corpus. A similar question arose in New York in 1874, Governor Dix having ordered the surrender of Carl Vogt, alias Stupp, after a refusal by the President to surrender him to Germany, as the offence was committed out of her territory, or to Belgium, in the absence of treaty provisions. The court unanimously agreed in discharging the prisoner, on the ground that the governor had no power to make the surrender. - The People, Barlow vs. Curtis, 50 N. Y. R. 321.

Kentucky VS. Dennison, 24 Howard, 66.

the international rule on the same subject. This should be the case, as the systems of criminal law and procedure, the rules of evidence in criminal cases, and the punishments imposed for criminal offences, in the several states of the Union, are so nearly the same as to make the observance of the international rule unnecessary.

The same tribunal has also held, in a leading case, that "where demand is made in due form, it is the duty of the executive on whom the demand is made to respond to it, and he has no moral right to refuse. Nevertheless, if he does refuse, no power has been conferred on the Federal courts to compel obedience, and the governors of states have often refused compliance with the demand, when, in their opinion, substantial justice did not require it."'

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References. For the latest and most valuable discussion of the important subject of Extradition, both international and interstate, see 'Moore on Extradition," by J. B. Moore, formerly of the Department of State, but now Professor of International Law in Columbia College; see also Spear's "Law of Extradition "; Hall, "International Law," p. 60; I Halleck, chap. vii. §§ 28-35; Boyd's Wheaton, pp. 156-162, and pp. 645-650; Amos, "Science of Law," p. 263; Klüber, §§ 60-66; I G. F. De Martens, §§ 99-102; Heffter, §§ 63, 63a; Bar, p. 17, and pp. 620-737; Teichmann, Les Délits Politiques, le Régicide et l'Extradition,” in vol. xi. of the "Revue de Droit International," pp. 475-524; see also vol. xiv. Ibid. pp. 403-413, 475-526; vol. xvii. Ibid. p. 375; xix. Ibid. p. 545; xx. Ibid. pp. 36, 55; xxiv. Ibid. pp. 17-38; vol. ii. “Int. Law Digest," §§ 208282, and "Foreign Relations of the United States for 1878," p. 268.

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1 Cooley, Const. Law, p. 191; Kentucky vs. Dennison, 24 Howard, 66.

CHAPTER VI

PRIVATE INTERNATIONAL LAW: THE CONFLICT OF LAWS

Relations of States and Individuals at International Law. It has been seen that "the relations of states to one another are twofold in character. Either the governments of the different states have relations to each other, or the individual citizens of the different states have relations to each other. The first class of relations give occasion to what is called Public International Law,' and the latter to what is sometimes called, with less precision, 'Private International Law.'

Private International Law. That branch of international law which treats of the relations of states with the citizens or subjects of other states is called Private International Law:

1 Amos, Science of Law, p. 25. Modern legislation in dealing with purely private relations between individuals is more anxious to give effect to those relations as they really are, or as it is conceived that they ought to be, than to affirm the exclusiveness of the rights of sovereignty; and there are many cases in which this object is best attained by allowing the law of the country to which a foreigner belongs to operate in lieu of the local law, or by allowing a subject to be affected by a foreign instead of his national law, when the two are in conflict. The concessions and relaxations of sovereign rights which it has become customary for civilized nations to make for these reasons have given rise to a body of

usage of considerable bulk, called private international law. Private international law is not, however, a part of international law proper. The latter, as has been seen, is concerned with the relations of states; in so far as individuals are affected, they are affected only as members of their state. Private international law, on the other hand, is merely a subdivision of national law. It derives its force from the sovereignty of the states administering it; it affects only the relations of individuals as such; and it consists in the rules by which courts determine within what national jurisdiction a case equitably falls, or by what national law it is just that it shall be decided.-Hall, § 10, p. 54.

or, as it is a question of determining whether the courts of a state are to apply their own municipal law, or that of another state, in the decision of a given cause, it is sometimes called, and with greater accuracy and propriety, the Conflict of Laws. The Practice Based on Comity or Consent. From the definition of sovereignty it has been seen that "the jurisdiction of a nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitations not imposed by itself. Any restriction upon it deriving validity from any external source would imply a diminution of the sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." The extent, therefore, to which the courts of one state may apply the laws of another in the decision of cases, as it is based upon comity or consent, must be determined by the municipal law of the state in which the court sits. It may be prohibited altogether, or may be permitted subject to such restrictions as that state may see fit to impose in accordance with its views of justice or expediency." Origin of the Practice. The rules of private international

1 Case of the Exchange, 7 Cranch, 116.

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(1.) The laws of every empire have force only within the limits of its own government. (2.) That all persons who are found within the limits of a government, whether their residence is permanent or only temporary, are to be deemed subjects thereof. (3.) That the rulers of every empire. from comity, admit that the laws of every people in force within its limits ought to have the same force everywhere, so far as they do not prejudice the powers or rights of other governments or their subjects. Huberus, liv. i. tit. iii.; De Conflictu Legum, p. 538, § 2; vol. iii. Eng. and Am.Cyc. of Law. p. 502. By the universal practice of civilized countries, by what is known as "the

comity of nations," the laws of one nation or state will be recognized and executed in another, where the rights of individuals are concerned. Whatever force and obligation the laws of one country have in another, depend entirely upon the laws and municipal regulations of such other country; in other words, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.-Huberus, liv. i. tit. iii. § 2; vol. iii. Eng. and Am. Cyc. of Law, p. 502. This comity is the purely voluntary act of the nation or state, and is totally inadmissible when the laws of the foreign state or nation are contrary to its policy, or prejudicial to its interests. Minor vs. Cardwell, 37, Mo. 350, and cases cited in vol. iii. Eng. and Am. Cyc. of Law, p. 506.

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