EXTRADITION TREATIES AND LAWS.

THE

BY SAMUEL T. SPEAR, D. d.

HE President of the United States, subject to the advice and consent of the Senate given by at least two-thirds of the Senators present, is authorized to make treaties with foreign nations. To Congress is delegated the power of making "all laws which shall be necessary and proper for carrying" these treaties into execution. These two grants of power are the constitutional sources of all the treaties and all the laws of the United States relating to the international extradition of fugitive criminals.

The volume of Public Treaties, published under the authority of Congress in 1875, contains the treaties of the United States in force on the 1st of December, 1873; and of these, twenty-four make provision for international extradition. Stated in the order of their respective dates, and designated by the foreign nations with which they were made, they are the following:-Great Britain, August 9th, 1842; France, November, 9th, 1843, with a supplementary article, February 24th, 1845, and another article, February 10th, 1858; Hawaiian Islands, December 20th, 1849; Swiss Confederation, November 25th, 1850; Prussia and other States, June 16th, 1852; Bremen, September 6th, 1853; Bavaria, September 12th, 1853; Wurtemberg, Oct. 13th, 1853; Mecklenburg-Schwerin, November 26th, 1853; Oldenburg, December 30, 1853; Schaumburg Lippe, June 7th, 1854; Two Sicilies, October 1st, 1855; Hanover, January 18th, 1855; Austria, July 3d, 1856; Baden, January 30th, 1857; Sweden and Norway, March 21st, 1860; Venezuela, August 27th, 1860; Mexico, December 11th, 1861; Hayti, November 3d, 1864; Dominican Republic, February 8th, 1867; Italy, March 23d, 1868, with an additional article, January 21st, 1869; Nicaragua, June 20th, 1870; Orange Free State, December 22d, 1871; and Ecuador, June 28th, 1872.

To these are to be added the extradition stipulation of May 23d, 1870, with San Salvador; that of September 12th, 1870, with Peru; that of March 19th, 1874, with Belgium, and that of August 11th, 1874, with the Ottoman Empire.

The one common purpose of all these stipulations is to establish, as between the contracting parties, the reciprocal right, upon the terms specified, to demand and impose a corresponding obligation to deliver fugitive criminals who, having committed offenses within the territorial jurisdiction of the one, have fled from justice and sought refuge within that of the other. How far a political sovereignty shall concede the right and assume the obligation is always a question for its own determination. The modern practice of nations is to settle the point by treaties beforehand, in which they pledge their faith to each other, and define the

cases in which, and the conditions upon which, extradition will be granted. This is the only basis of such extradition acknowledged by the United States.

The crimes specified in the twenty-four extradition stipulations contained in the volume of Public Treaties, are the following:-1. Arson. 2. Assassination. 3. Assault with intent to commit murder. 4. Burglary. 5. Circulation or fabrication of counterfeit money. 6. Counterfeiting public bonds, bank bills, securities, stamps, dies, seals, and marks of state and administrative authority, etc. 7. Embezzlement of the public money. 8. Embezzlement by public officers. 9. Embezzlement by persons hired or salaried. 10. The utterance of forged paper. 11. Forgery. 12. Infanticide. 13. Kidnapping. 14. Larceny of cattle or other goods and chattels of the value of twenty-five dollars or more, found only in the treaty with Mexico. 15. Mutiny. 16. Murder. 17. Mutilation, 18. Parricide. 19. Piracy. 20. Poisoning. 21. Rape. 22. Robbery.

These crimes are designated by titles known and acknowledged, as between the contracting parties to mean the same offenses, or they are made the subjects of special description. When the designation is simply by titles, and these titles are furnished by different languages, titles that are equivalents in meaning are used. These names mean things; and neither of the contracting parties can, by local legislation, change the nature and character of the crimes that are the subjects of the stipulation, and thus in effect create new ones, and then claim extradition for these new crimes on the mere basis of names. Sometimes, for the purpose of greater certainty, extradition crimes are specifically defined. Thus, in the supplemental article of February 24th, 1845, added to the treaty of 1843 with France, burglary is placed in the extradition list, defined to be “breaking and entering by night into the mansion-house of another with intent to commit felony." Should either goverment, for its own purposes, see fit to establish a different grade of burglary, the offense would not be the one defined in the treaty, and, hence, would not, under the treaty, be an extradition crime. It was on this ground that Judge Fancher, in Lagrave's Case, 14 Abb. Pr. R. N. S. 333, said that the crime of burglary, in the sense meant in the treaty with France, "refers to the common law offense of burglary," and that the treaty does not "provide for the demand and extradition of a fugitive for our statutory offense of burglary in the third degree." The proceedings in this case he held to be unauthorized and illegal," because the crime charged was not the one specified in the treaty.

The general rule of evidence adopted in the extradition treaties of the United States is, that the charge of criminality on which the demand for delivery is based, must be supported by such evidence

as would justify the apprehension and commitment for trial of the person accused, if the alleged offense had been committed in the country on which the demand is made. The laws of that country, and not those of the one making the demand, furnish this rule; and in this respect each government administers its own laws without reference to those of the other. The obligation of delivery is qualified by this rule, since it is a part of the contract. Many of the treaties of the United States, for the purpose of applying the rule, expressly authorize "the judges and other magistrates" of the contracting governments to issue their warrants for the apprehension of accused persons, to examine into the question of their alleged criminality, and, if satisfied that the evidence is sufficient to detain them for trial, to certify this fact to "the proper executive authority." Other treaties give the rule of evidence, but contain no such provision for its application, and hence leave the matter to be determined by legislation in each country.

The actual delivery of fugitive criminals is, in all these treaties, to be preceded by a demand of one government upon the other, made by ministers or officers duly authorized. The stipulation is to deliver such fugitives, "upon mutual requisitions," in the cases and upon the evidence specified. Who shall make this delivery? Ten of these treaties expressly assign this duty to the executive authority of the respective governments; twelve of them do so, not expressly, but by obvious implication; and in two of them there is no mention of the authority by which the delivery shall be made.

There are also special qualifications, found in some of these treaties, which limit their application as to crimes and persons. Fourteen of them expressly exclude political offenses from the list of extradition crimes, with the exception that, in the treaty with the Two Sicilies, it is provided that such offenses shall be excluded "unless the political offender shall also have been guilty of some one of the crimes enumerated in article twenty-two." Eight of them declare that the stipulation shall not apply to offenses committed before the date of the treaties. One of them provides that no surrendered person shall be tried for any offense committed previously to that for which extradition was demanded; and two of them apply the same principle in respect to "any ordinary crime" committed before the one stated in the requisition. Fourteen of them exclude from extradition the citizens or subjects of the country on which the demand is made; and sixteen provide that, in cases in which the persons demanded have committed crimes within the jurisdiction of the country whose asylum they have sought, extradition may be deferred until after their acquittal or punishment. Four of them declare that the extradition stipulations shall not be affected by subsequent treaties respecting naturalization. All these

treaties, with the exception of five, relate simply to fugitives charged with crime and demanded for trial; and in these five express provision is made that extradition shall extend also to fugitives convicted of crime, with the requirement that, in such cases, an authenticated copy of the sentence of the court shall be the evidence of the fact.

This outline sketch presents the general features and characteristics of the extradition treaties of the United States. Some things are common to them all, and others are the peculiarities of particular treaties.

The first of these stipulations is the one found in the twenty-seventh article of the treaty of 1794 with Great Britain, which, by the next article, was limited to the period of twelve years, and hence ceased to be operative after 1806. The article reads as follows:

"It is further agreed that His Majesty and the United States, on mutual requisitions, by them respectively, or by their respective ministers or officers authorized to make the same, will deliver up to justice all persons who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on 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 offense had there been committed. The expense of such apprehension and delivery shall be borne and defrayed by those who make the requisition and receive the fugitive."

This contract specified murder and forgery as the crimes for which extradition might be demanded. It designated the agency through which the demand might be made, and gave the rule of evidence as to the criminality of the accused person, and, hence, as to the obligation of compliance with the demand. It pledged the good faith of each government to conform its policy to the terms of the stipulation. It was upon its face a contract that contemplated action in futuro, and, hence, was an executory contract, and not one executed by the mere ratification of the treaty. It, however, omitted to provide, in express terms, any agency or authority for making the delivery of a fugitive criminal, or for applying the rule of evidence as to criminality; and Congress never passed any law for carrying it into execution.

The only case which occurred under this treaty was that of Jonathan Robbins in 1799, a report of which is given in Wharton's State Trials, pp. 392457. Robbins, on suspicion of having been concerned in the mutiny on board the British frigate Hermione in 1791, was arrested in 1799 in Charlestown, South Carolina, and committed to prison, before any demand for delivery was made by the British Government. After he had been imprisoned for about six months, Judge Bee, United States District Judge for that State, was informed by the

Secretary of State that a demand had been made upon the President for his delivery as a fugitive criminal. and also notified that the President, if the evidence was sufficient to sustain the charge, advised and requested him to deliver the prisoner to "the Consul or other agent of Great Britain who shall appear to receive him." Robbins was soon after brought before the District Court on habeas corpus, and Judge Bee, after hearing the case, ordered him to be surrendered "to the British Consul, or such person or persons as he shall appoint to receive him." He subsequently addressed a letter to the Secretary of State, informing him of his "compliance with the request of the President of the United States," and saying that he judged the evidence against Robbins sufficient to sustain the charge on which he had been demanded.

This case produced an intense excitement among the people, and led to a warm discussion in the House of Representatives. It was claimed by some that the court had no jurisdiction to make the delivery, aud by others that the President could not execute the stipulation until authorized to do so by an act of Congress. Mr. John Marshall, subsequently Chief Justice of the Supreme Court of the United States, was then a member of the House of Representatives; and, in the speech which he made on the subject, he defended the action of the President, taking the ground that, while the courts have no power "to seize any individual and determine that he shall be adjudged by a foreign tribunal," the President, being charged with the duty of executing the laws, and a treaty being declared by the Constitution to be a law, had power to make the delivery in the absence of any legislation by Congress. The fact in the case was that Judge Bee issued the order for delivery; and, according to the argument of Mr. Marshall, he had no authority, as a judge, to do so. The authority was with the President; and, as a matter of fact, he did not exercise it. What he did was to advise and request the judge to make the delivery if the evidence was sufficient. In his letter of May 21st, 1799, to the Secretary of State, he said: "How far the President of the United States would be justifiable in directing the judge to deliver up the offender is not clear. I have no objection to advise and request him to do it."

This advice and request plainly conferred no authority upon Judge Bee, when hearing a case upon habeas corpus, and determining whether the prisoner was lawfully restrained of his liberty. The argument of Mr. Marshall, while it logically condemns the action of Judge Bee, does not fit that of the President. It claims for him a power which he did not exercise, but which he advised and requested Judge Bee to exercise. The delivery was a judicial one, and was not officially the act of the President at all. The judge of a court did what, as Mr. Marshall asserted, the President only had the authority

to do, and not the less so because he was requested by the latter to do it. The advice of the President given to a judge in hearing a habeas corpus case is no basis for the exercise of power.

Chief-Justice Marshall, in delivering the opinion of the Supreme Court of the United States in Foster v. Neilson, 2 Pet. 253, said, "Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of Congress, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court." The same court reaffirmed this doctrine in The United States v. Arredondo 6 Pet. 691.

The twenty-seventh article of the treaty of 1794 with Great Britain was a contract in which the parties mutually pledged their faith with respect to action in futuro, but in which they made no provision as to the agency for the delivery of fugitive criminals. They simply agreed that the delivery should be made in the cases and circumstances stated. The contract did not by its own terms execute itself, and, hence, needed legislation to make it operative, and, hence, was not, in the absence of the requisite legislation, "the law of the land" for courts. Courts, according to the principle laid down in Foster v. Neilson, could exercise no power under it until Congress should legislate for its execution.

Was the article "the law of the land" for the President? It certainly was not so in express terms. The President has power to make treaties. These treaties, if self-executing without the aid of legislation, are laws of the land; yet it is not a constitutional prerogative of his office to execute treaties, any more than it is to execute the Constitution, except as he is authorized to do so. Attorney-General Wirt, in Sullivan's case, 1 Op. At. Gen. 509 said: "The Constitution and the treaties and acts of Congress made under its authority, comprise the whole of the President's powers." In this case there was no law of Congress, authorizing the President to deliver fugitive criminals, and no provision in the treaty giving the authority; and, according to the doctrine stated in Foster v. Neilson, the extradition stipulation was not "a law of the land" because it was a contract which did not and could not execute itself without legislation. It may have been the duty of Congress to supply the appropriate legislation; but its failure to do so certainly did not add to the powers of the President. Legislative omissions are not a source of positive powers to any department of the Government.

Our conclusion is, that the surrender of Robbins

was without legal authority. The treaty gave Judge | Bee no authority to make the surrender, and the President could give him none. The President himself had no such authority; and if he had, he did not directly exercise it. It was stated, in the debate in the House of Representatives, that President Washington had expressed strong doubts whether this part of the treaty of 1794 could be carried into effect without the action of Congress.

The next extradition stipulation of the United States is contained in the tenth article of the treaty of August 9th, 1842, with Great Britain, which provides as follows:

"It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or 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 offense had there been committed; 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 examing judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive."

This differs from the treaty of 1794, in increasing the number of extradition crimes to seven, and in providing that the judges and other magistrates of the respective Governments shall have power to arrest and examine alleged fugitives, and, if the evidence of criminality be sufficient, to certify the fact to the proper executive authority," that a warrant for surrender may be issued.

In The Matter of the British Prisoners, 1 Wooodb. & Minot, 66, Judge Woodbury interpreted the words "the proper executive authority" to mean, in their application to the United States, the President acting in such matters through the State Department, whose acts are to be regarded as his and by his authority. He also said that, "where the aid of no such act of Congress seems necessary in respect to a ministerial duty devolved on the Executive by the supreme law of a treaty, the Executive need not wait and does not wait for acts of Congress to direct such duties to be done." This case occur

red in 1845, before Congress had passed any extradition law; and the view of Judge Woodbury was, that the treaty of 1842, in its terms and without any legislation for its execution, by clear implication, gave the President authority to make the delivery of fugitive criminals. Attorney-General Nelson, in The Case of Christiana Cochrane, 4 Op. Att.-Gen. 201, adopted this construction, and advised the President to make the surrender of the alleged criminal. These two cases are the only ones that occurred under the treaty prior to the act of Congress providing for the execution of extradition treaties; and in both no legislation was thought necessary to give effect to the treaty.

An attempted extradition under the treaty of November 9th, 1843, with France, brought this question distinctly before Congress; and the result was the enactment of a law in 1848 for carrying into execution all such treaties. The treaty with France expressly provided that the surrender, on the part of the United States, "shall be made only by authority of the executive thereof." It, however did not provide for any preliminary arrest and examination by the magistrates of either country. In 1847 a demand was made for the surrender of

Nicholas Lucien Metzger by the French Minister, on the charge of forgery in France; and the executive authority at Washington, declining to act in the first instance, referred him to the courts. Metzger was afterward arrested in the city of New York, on a warrant issued by a police magistrate; and the magistrate, after examining the case, deemed the evidence sufficient, and committed him to prison to await the order for extradition from the President. He was, on habeas corpus, released from prison by a circuit judge of the State of New York, who held that the magistrate had no jurisdiction over the matter. He was subsequently arrested on a warrant issued by Judge Betts, of the United States District Court, who, after hearing the case, held that it came within the terms of the treaty with France; that the evidence was sufficient to detain the accused, and that, the treaty being a part of the supreme law of the land, no act of Congress was needed to carry it into execution. The judge committed him to prison, to await the action of the President. 1 Edmond's Select Cases, 399. An application was then made to the Supreme Court of the United States for a writ of habeas corpus, to review the action of Judge Betts; and the court, upon hearing the case, refused to grant the writ, on the ground that, the district judge having exercised a special authority at chambers, and there being no provision of law for a revision of his judgment, the court had no jurisdiction in the matter. 5 How. 176.

The President of the United States then issued his order, commanding the marshal of New York to deliver the prisoner to the diplomatic agents of the French Government. Before this order was

executed, Judge Edmonds, a circuit judge of New York, granted a writ of habeas corpus which brought the accused before him; and after the case was twice argued, he discharged him, giving an elaborate opinion directly the reverse of that of Judge Betts. "This case," said the Judge, "involves the question whether the President of the United States has authority, by virtue of mere treaty stipulation, and without an express enactment of the national legislature, to deliver up to a foreign power, and virtually to banish from the country, an inhabitant of one of the sovereign States of our confederacy." The conclusions to which he came, after considering the question at large, are the following:-1. That "a treaty containing provisions to be executed in futuro is in the nature of a contract, and does not become a rule for the courts until legislative action

shall be had on the subject." 2. That "the treaty

with France of 1843, providing for the surrender of fugitives from justice, cannot be executed by the President of the United States without an act of Congress." See the Matter of Metzger, 1 Barb. 248. This simply applies the principle stated in Foster v. Neilson, supra, and also in Turner v. The American Baptist Missionary Union, 5 McLean's C. C. R., 344. If the treaty-making power can pledge the faith of the United States in respect to future acts, and independently of and without the legislation of Congress, commit the execution of treaties to the President, thus in effect constituting him the sole judge of their meaning and the occasions and manner of their fulfillment, then it is theoretically a very dangerous power, because capable of the most enormous abuses. The President acts independently of Congress when exercising the treaty power; and if he be equally independent in respect to the execution of treaties, then he may, with the consent of the Senate, place the whole matter in his own hands, without the restraints or guidance of law, except as thus made. The fact that a treaty, whether for extradition or any other purpose, is a part of "the supreme law of the land," no more makes it self-acting and self-executing without legislation, than does the fact that the Constitution is such a law make it self-acting and self-executing. Nearly all the powers granted in the latter are brought into operation by legislative action. Why should not the same rule apply to the contracts made in treaties, especially when their stipulations do not upon their face act in presenti, but provide for things to be done only in futuro? Such treaties address themselves to the legislative discretion of Congress, and are to be executed by its aid and co-operation.

The act of Congress, of August 12th, 1848, entitled "An Act for giving effect to certain treaty stipulations between this and foreign governments for the apprehension and delivering up of certain offenders," not only followed soon after the deci

sion of Judge Edmonds, but, by its title, seems to recognize the correctness of his view. The law, as then enacted, as subsequently supplemented by the acts of June 22d, 1860, and of March 3d, 1869, and as reproduced in the Revised Statutes of the United States, is contained in sections 5270-5277. The first of these sections reads as follows:

"Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within the limits of any State, district or Territory, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his charged, that he may be brought before such justice, warrant for the apprehension of the person so judge or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so eharged to the proper jail, there to remain until such surrender shall be made."

This provides the judicial agency for arresting any person charged with crime under any extradition treaty, and also examining the evidence of his criminality, and certifying the same to the Secretary of State if the evidence be deemed sufficient to sustain the charge.

Section 5271, as amended by the act of June 19th, 1876, relates to the evidence upon the judicial hearing of any complaint, and reads as follows :

"In every case of complaint and of a hearing upon the return of a warrant of arrest, any depositions, warrants or other papers offered in evidence, shall be admitted and received for the purpose of such hearing if they shall be legally and properly authenticated, so as to entitle them to be received as evidence of the criminality of the person so apprehended by the tribunals of the foreign country from which the accused party shall have escaped, and copies of any such depositions, warrants or other papers shall, if authenticated according to the ceived as evidence; and the certificate of the prinlaw of such foreign country, be in like manner recipal diplomatic or consular officer of the United States resident in such foreign country shall be proof that any such deposition, warrant or other paper, or copy thereof, is authenticated in the manner required in this section."

This does not change the rule that the evidence of criminality must be such as would justify the commitment of the accused for trial, if the alleged offense had been committed in the country on which