1 The exception is the convention with Uruguay, March 11, 1905, Malloy’s Treaties, II, 1825. Notwithstanding the singular omission, it is not believed that the high 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 See the 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.

See also case of Nash under Art. XXVII of the Jay treaty November 19, 1794, Wharton’s State Trials, 392.

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

5 Convention with France, Jan. 6, 1909, Arts. II, sees. 12 and 7, Charles’ Treaties, 34. See also editorial comment, this Journal, V, 1060. See also convention with Honduras, Jan. 15, 1909, Charles’ Treaties, 71.

6 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.

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

8 See Oppenheim, 2d ed., I, § 338

9 See Oppenheim, 2d ed., I, §§ 333–340.

Although Art. IV of the extradition treaty between Russia and Spain of March 9, 1877 contained a reservation respecting political offenses, that of April 24, 1888 between the same countries made no similar provision, and added to the list of extraditable offenses in Art. II, that of lése majesté with respect to the sovereign or members of his family. See Tratados de España, VII, 221; id., IX, 329.

10 Declared Mr. Fish, Secretary of State, in a communication to Mr. Hoffman, May 22, 1876:

“Neither the extradition clause in the treaty of 1794 nor in that of 1842 contains any reference to immunity for political offenses, or to the protection of asylum for political or religious refugees. The public sentiment of both countries made it unnccsary. Between the United States and Great Britain, it was not supposed, on either side, that guarantees were required of each other against a thing inherently impossible, any more than, by the laws of Solon, was a punishment deemed necessary against the crime of parricide, which was beyond the possibility of contemplation.” (For. Rel. 1876, 233, 237, Moore, Dig., IV, 334.)

See also message of President Tyler, August 11, 1842, submitting treaty with Great Britain of that year to the Senate, Senate Ex. Docs., 27 Cong. 3 Sess., Vol. I, Doc. 2, p. 22 quoted in Moore, Extradition, I, § 152; see also id., I, § 206.

11 The American cases considered are the following: The Mexican revolutionists of 1880 (For. Rel. 1880, 787-788, Moore, Extradition, I, §216); case of Francisco J. Cazo, Mexico (Moore, Extradition, I, § 217, and MSS. there cited not contained in published documents of the United States); the Salvadorean refugees (In re Ezeta, 62 Fed. Rep. 972; Moore, J. B., in American Law Review, XXIX, 1; For. Rel. 1894, 563–576)Google Scholar; the San Ignacio raid, Mexico (Ornelas v. Ruiz, 161 U. S. 502; For. Rel. 1897, 405–416, Moore, Dig., IV, 336-349); case of James Lynchehoun, Great Britain (Proceedings in the case of James Lynchehoun containing text of decision by Commissioner Charles W. Moores, Indianapolis, 1903); case of Christian Rudovitz, Russia, 1909 (Mr. Root, Secy, of State, to Baron Rosen, Russian Ambassador, Jan. 26, 1909, Dept. of State, file 16649/9, Serial No. 121; printed Statement and Argument, and Abstract of testimony submitted to the Secretary of State in behalf of the accused, January, 1909; E. Maxey, in Green Bag, XXI, 147); case of Pouren, Russia, 1909.

See also case of McKenzie (Moore, Extradition, I, § 211) whose extradition was sought by Canada in 1837 from the authorities of the State of New York, and refused by the latter because, as the acts charged against the accused were regarded as political, they were embraced within the provisions of the New York statute excepting treason from the crimes on account of the commission of which a fugitive might be surrendered by the governor to a foreign state.

See also the St. Albans raid case in 1864, in which a Canadian court ordered the discharge of certain prisoners whose extradition was sought by the United States. Moore, Extradition, § 215, and documents there cited.

An English case frequently cited by American authorities, is that of re Castioni, 1891, 1 Q. B. 149. See also re Meunier, 1894, 2 Q. B. 415; re Arton, 1896, 1 Q. B. 108.

See also the Swiss case of Wassilieff, 1908, Entscheidungen des Schweizerischen Bundesgerichtes, XXXIV, pt. I, 533, and comments thereon “by Julian W. Mack, 1909, Proceedings Am. Soc. of Int. Law, III, 144, 153.

12 See Abstract of testimony in the Rudovitz case submitted to the Secretary of State in behalf of the accused, January, 1909.

13 See Moore, Extradition, I, § 217.

14 See statement of facts in Ornelas v. Ruiz, 161 U. S. 502, 510–511. See also J. Reuben Clark, Jr., Proceedings, Am. Soc. of Int. Law, III, 95, 120.

15 See Opinion of Commissioner Moores, Proceedings in case of James Lynchehoun, 124–130.

16 Declared J. Reuben Clark, Jr., 1909, Proceedings, Am. Soc. of Int. Law, III, 95, 120.

“It would also appear from these Russian cases that the party to which the fugitive belongs need not, in order to be considered revolutionary, be warlike, that is, it need not at the moment have an armed force in the field or be engaged in military operations.

“And it would seem, further, that such a party need not have control of any of the actual governmental machinery even in the district in which the acts complained of occurred. It would appear to be sufficient if it were an actual party, its operations as well as its organization being secret. It should, however, be noted that in the Russian cases it appeared that although the Russian Government was in actual control of the governmental offices of the revolutionary provinces, the revolutionists maintained among themselves a more or less effective organization and attempted, at least, to govern the members of their own party and to punish those inimical to it."

It seems clear that in the absence of an uprising, acts of violence, whether for the purpose of inciting revolution, or spreading anarchy, would not be regarded as political offenses under the treaties of the United States. See J. B. Moore in Am. L. Rev., XXIX, 16–17, citing re Meunier, 1894, 2 Q. B. 415, 419. As the anarchistic theory precludes the idea of government, an avowed anarchist would find difficulty in shielding himself from the consequences of his acts, by asserting a connection with any movement, the object of which was to gain control of a government for the purpose of exercising governmental functions.

17 Declared Denman, J., in re Castioni, (1891) 1 Q. B. 149, 159: “The question really is, whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as a part of the political movement and rising in which he was taking part.” (Cited with approval by Morrow, J., in re Ezeta, 62 Fed. Rep. 972, 999; also by Secretary Sherman in the Guerra case (San Ignacio raid), and by Secretary Root in the Rudovitz case.

18 Declares Prof. Moore: “The act must be connected with the contest; it must be incidental to and form a part of the political disturbance in order to be classed as a political offense.” (Am. L. Rev. XXIX, 1, 17.)

With respect to the Rudovitz case Mr. Root, Secretary of State, declared in a communication to Baron Rosen, Russian Ambassador, Jan. 26, 1909:

“In reply I have the honor to say that an attentive reading of the evidence offered at the hearing before the extradition magistrate goes to show,— that on the night of January 3, 1906, a party of some sixteen armed men, masked and disguised, came to the little village of Benen on the estate of Benen and, having gained entrance into certain houses of the village, killed a man (Christian Leshinsky), his wife (Trina Leshinsky), and their married daughter (Wilhelmina Kinze); that they also robbed the Kinze woman and her husband (Theodor Kinze) before killing her; and that some time during the occurrence they set fire to the house in which they had found and killed the mother, Trina. It does not appear that the men implicated in the affair gave at the time any reason for the killing of Christian and Trina Leshinsky, though they are said to have declared that they killed the Kinze woman because she was a ‘spy.’

“The testimony of the accused given before the extradition commissioner goes to establish that the accused was a member of the Benen group of the Social Democratic Labor party, one of the several revolutionary parties in Russia; that later he joined the Zhagarn group of that party; that at a regular meeting of the Zhagarn group, the death of the Leshinskys and Mrs. Kinze and the burning of the premises, were voted as revolutionary acts and measures; and that the accused participated in the business before this meeting. Other witnesses corroborated his testimony that the aim, purpose, and work of the Social Democratic Labor party were revolutionary and that the death of the persons above named was ordered by one of the organizations of that party. Although there was some discrepancy in the evidence as to just which local organization passed the original death decree, this has appeared to be immaterial in view of the evidence to the fundamental fact that some organization of this revolutionary party did actually decree that the persons named should be put to death. The witnesses testifying to these matters were not impeached and the demanding Government introduced no evidence to controvert their testimony.

“In view of these facts and circumstances the Department after a mature and careful consideration of the evidence so adduced in this case, finds itself forced to the conclusion that the offenses of killing and burning with which the accused is charged are clearly political in their nature.” (File No. 16649/9, Serial No. 121.)

19 Thus in the Rudovitz case it was urged by counsel for the demanding government in argument before the committing magistrate, that the prisoner should be held to answer to the charge of robbery, in case he could not be held on any other, on the ground that the acts of robbery were not, in the judgment of counsel, connected with or incidental to the uprising in the Baltic provinces. See printed Statement and Argument in behalf of the accused, page 10. See also Mr. Romero, Mexican Minister, to Mr. Sherman, Secy, of State, November 15, 1897, For. Rel. 1897, 406, Moore, Dig., IV, 337.

20 See Mr. Sherman, Secy, of State, to Mr. Romero, Mexican Minister, Dec. 17, 1897, For. Rel. 1897, 408, 414, Moore, Dig., IV, 340, 347.

21 See id.; also Mr. Root, Secy, of State, to Baron Rosen, Russian Ambassador, Jan. 26, 1909, in which it was said:

“The robbery committed on the same occasion was a natural incident to executing the resolutions of the revolutionary group and can not be treated as a separate offense, certainly not as a separate offense by this man without some specific identification of him with that particular act, and of this there is no evidence whatever. Therefore, none of these offenses is such as will afford a proper and sufficient ground for the extradition of the accused to Russia.” (File 16649/9, Serial No. 121.)

22 The decisive point has always been the nature of the expedition and the relation thereto of the actor and of the acts chargeable to him, rather than the nature of what was done. This has been true even when the case arose under the treaty with Mexico of 1861 reserving from its application offenses of a “purely political character.” (See Mr. Sherman, Secy, of State, to Mr. Romero, Dec. 17, 1897, For. Rel. 1897, 408, Moore, Dig., IV, 340.) Compare in this connection articles adopted by the Institute of International Law, Sept. 8, 1892, Annuaire, XII, 182; also report of Albéric Rolin relative thereto, id., 156; Frederic R. Coudert, 1909, Proceedings Am. Soc. of Int. Law, III, 124, 143.

23 Towards Mrs. Kinze, a victim of the expedition in the Rudovitz case, there was felt the deepest malice by those who brought about her death. See also J. B. Moore, in Am. L. Rev. XXIX, 1, 17.

24 See J. Reuben Clark, Jr., 1909, Proceedings, Am. Soc. of Int. Law, III, 95, 120, who, after stating that this point is settled by the recent Russian cases (of Rudovitz and Pouren), declares that:

“Moreover, it would appear from the cases that it is not necessary that the uprising, if it actually exists, should be of any considerable extent or that it give particular promise of being successful. This seems to be established by the case of Guerra, in which, if the transactions in which Guerra took part be divorced from the attending circumstances, the expedition in which he was engaged resembles raids of a marauding band rather than an armed expedition of a warlike party, and this same observation applies with equal force to the activities of Cazo, the defendant in an earlier case."

25 See, for example, Art. Ill, treaty with Russia, March 16,1887, Malloy’s Treaties, II, 1528; Art. IV, treaty with Belgium, Oct. 26, 1901, id., I, 106; Art. IV, treaty with Guatemala, Feb. 27, 1903, id., I, 881; Art. III, treaty with Spain, June 15, 1904, id., II, 1714; Art. III , treaty with El Salvador, April 11, 1911, Charles’ Treaties, 108.

Art. III of the treaty with Brazil, May 14, 1897, and May 28, 1898, declares that acts “such as constitute murder, or wilful and illegal homicide,” when directed against the lives of specified officials “shall not be considered political crimes when they are unconnected with political movements.” Malloy’s Treaties, I, 148.

Concerning the so-called attentat clause in the Belgian Law of 1856, see Oppenheim, 2d ed., § 335.

See also Julian W. Mack, 1909, Proceedings, Am. Soc. of Int. Law, 144, 151–152, citing the Swiss cases of Jaffai, Entscheidungen des Schweizerischen Bundesgerichtes, XXVII, 52, and of Malatesta, id., XVII, 450.

See also § 852 (2) of the Russian Law on Extradition, sanctioned by the Czar Dec. 15, 1911, Rev. D. I., 2 ser., XIV, 187, 188.

26 Concerning correspondence with Great Britain in 1865, and the Papal States in 1866, respecting the surrender to the United States of persons involved in the assassination of President Lincoln, see Moore, Extradition, I, § 208, p. 308, note No. 4, citing Dip. Cor. 1865, Part I, 386; id., Part II, 142; id., 1866, Part II, 121–125. See also Moore, Dig., IV, 352–353.

27 See Morrow, J., in Re Ezeta, 62 Fed. Rep. 972, 999, quoting with approval recommendation of International American Congress of 1890; Mr. Sherman, Secy, of State, to Mr. Romero, Mexican Minister, Dec. 17, 1897, For. Rel. 1897, 408, 413,414, Moore, Dig., IV, 340, 346; Commissioner Moores, Proceedings, Lynchehoun Case, 124-125. See also Hon. Julian W. Mack, 1909, Proceedings, Am. Soc. of Int. Law, III, 144, 153–155; and compare J. Reuben Clark, Jr., id., 96–102.

28 Such was the position taken by Judge Morrow, in the Ezeta Case, and by Commissioners Moores and Foote, respectively, in the Lynchehoun and Rudovitz cases.

Declared J. B. Moore, in Am. L. Rev. XXIX, 1, 16:

“At the end, extradition, whatever may be the character of the offense, is a political act; but, prior to that stage, it is, both in the United States and England, chiefly a judicial proceeding, in which the person charged is entitled to be set at liberty whenever he has shown that his detention is not warranted by the treaty."

29 See Ornelas v. Ruiz, 161 U. S. 502. The situation would be otherwise, however, in the fanciful case where, irrespective of the testimony offered, it should appear from the allegations of the complaint that extradition of the accused was sought in order to prosecute him for a political offense, and the decision of the committing magistrate was adverse to the contentions of the prisoner.

30 See J. Reuben Clark, Jr., 1909, Proceedings Am. Soc. of Int. Law, III, 95, 114–118.

31 See Mr. Fish, Secy, of State, to Mr. Delfosse, Belgian Minister, Aug. 11, 1873, For. Rel. 1873, I, 84; Mr. Gresham, Secy, of State, to Mr. Bartleman, No. 110, June 11, 1894, MS. Inst. Venezuela, IV, 304, Moore, Dig., IV, 288; Mr. Olney, Secy. of State, to Mr. Hansom, Minister to Mexico, Dec. 13, 1895, For. Rel. 1895, II, 1008, 1009, Moore, Dig., IV, 289.

Declared Mr. Blaine, Secy, of State, to Baron Fava, Italian Minister, June 23, 1890:

“But the chief object of extradition is to secure the punishment of crime at the place where it was committed, in accordance with the law which was then and there of paramount obligation. It is for this purpose that extradition treaties are made, and, except in so far as their stipulations may prevent the realization of that design, they are to be executed so as to give it full effect. It is at the place where the offense was committed that it can most efficiently and most certainly be prosecuted. It is there that the greatest interest is felt in its punishment and the moral effect of retribution most needed. There, also, the accused has the best opportunity for defense, in being confronted with the witnesses against him; in enjoying the privilege of cross-examining them; and in exercising the right to call his own witnesses to give their testimony in the presence of his judges. These and other weighty considerations, which it is not necessary to state, have led what I am inclined to regard as the great preponderance of authorities on international law at the present day to condemn the exception of citizens from the operation of treaties of extradition.” (For. Rel. 1890, 559, 566, Moore, Dig., IV, 290, 296.)

See also admirable statement in Moore, Dig., IV, 287.

32 The existing treaties with Great Britain and Italy contain no restriction. The convention with France of Nov. 9, 1843, was similarly free, and likewise that with Switzerland of Nov. 25, 1850. Later conventions, however, with France of Jan. 6, 1909, and with Switzerland of May 14, 1900, expressly remove any obligation to surrender citizens. According to Art. III of the treaty with the Argentine Republic of Sept. 26, 1896, Art. VII of that with Japan of April 29, 1886, and Art. IV of that with Mexico of Feb. 22, 1899, it is provided in differing form that while the contracting parties are not bound to surrender their respective citizens, each party, ("the executive authority of each,” in the Mexican treaty) shall have the power to deliver them up, if in its discretion it should be deemed proper to do so.

See case of Mattie Rich, D., an American citizen, arising under the Mexican treaty, For. Rel. 1899, 497–501 Google Scholar, Moore, Dig., IV, 303; also case of Yoshitaro Abe, , a Japanese subject extradited from Japan to Hawaii, For. Rel. 1908, 512–515 Google Scholar.

33 See Mr. Blaine, Secy, of State, to Baron Fava, Italian Minister, June 23, 1890, For. Rel. 1890, 559, Moore, Dig., IV, 290.

34 Case of Piguet, 1891, Entscheidungen des Schweizerischen Bundesgerichtes, XVII, 85-91. A translation of the major portion of the opinion is contained in Moore, Dig., IV, 298–300.

35 See Baron Fava, Italian Minister, to Mr. Blaine, Secy, of State, April 20, 1890, For. Rel. 1890, 555.

36 See Memorandum of Mr. Knox, Secy, of State, Dec. 9, 1910, re Porter Charlton, this Journal, V, 188. See also Ex parte Charlton, 185 Fed. Rep. 880, 886–887.

37 Charlton v. Kelly, 229 U. S. 447, 476.

38 It is usually provided that extradition shall be granted to the state whose demand is first received, provided that the government from which extradition is sought is not bound by treaty to give preference otherwise. See, for example, Art. XI of the treaty with Peru, Nov. 28,1899, Malloy’s Treaties, II, 1448. According to Art. VIII of the treaty with Uruguay, March 11, 1905, the fugitive is to be surrendered to that state in which he shall have committed the gravest crime, Malloy’s Treaties, II, 1828. Compare Art. X, treaty with France, Jan. 6, 1909, Charles’ Treaties, 36.

See also Mr. Marcy, Secy, of State, to Mr. Gadsden, Minister to Mexico, No. 54, Oct. 22, 1855, MS. Inst. Mexico, XVII, 54, Moore, Dig., IV, 305.

39 As the existing treaty with Mexico (Feb. 22, 1899) contemplates the surrender of American citizens, under circumstances specified in Art. IV, and also provides in Art. XII for the subsequent surrender to a third Power, of a person who has been given up, an American citizen surrendered by the United States to Mexico, might, under the conditions specified, be later surrendered by Mexico to a third state.

40 See Moore, Extradition, § 143; Mr. Uhl, Acting Secy, of State, to Mrs. Jewitt, April 13, 1894, 196, MS. Dom. Let. 350, Moore, Dig., IV, 306.

Declared Mr. Bacon, Acting Secy, of State, to Ambassador White, April 3, 1907:

“Precisely the same rule obtains in the United States where the surrender of citizens or subjects of a third government is demanded. The diplomatic representative of such government has sometimes made representations to this department with a view to the protection of its national; but the department has always considered that his legitimate functions are limited to safeguarding the fugitive’s rights by observing the course of the proceedings so as to satisfy himself that all the forms of law have been complied with before extradition is granted.” (For. Rel. 1907, I, 425.)

41 See documents relative to the extradition of Jacobs, F. L. , an American citizen, to the Argentine Republic from France. For. Rel. 1907, I, 411–430 Google Scholar.

42 See Mr. Wilson, Third Assist. Secy, of State, to Mr. Jacobs, May 25, 1907. For. Rel. 1907,1, 428.

43 See instructions of the Department of State to the American Minister at Madrid, Aug. 18, Sept. 12, Sept. 16, and Dec. 8, 1891, and March 24, 1892, MS. Inst. Spain, XXI, 54, 65, 66, 91; also dispatch No. 216, of March 5, 1892, from the American legation at Madrid, 124 MS. Despatches, from Spain, Moore, Dig., IV, 330; Mr. Foster, Secy, of State, to Mr. Washburn, Minister to Switzerland, July 27, 1892, For. Rel. 1894, 649, 650, Moore, Dig., IV, 330. Compare Mr. Seward, Secy, of State, to Lord Lyons, British Minister, June 6, 1863, MS. Notes to Great Britain, X, 67, Moore, Dig., IV, 329.

44 See Mr. Adams, Secy, of State, to Mr. Jackson, Jan. 24,1822, 19 MS. Dom. Let. 248, Moore, Dig., IV, 328; also facts in Ex parte Wilson, 140 S. W. Rep. 98.

In the recent case of Antonio Martinez, kidnapped in Mexico by a Mexican, brought into the United States and prosecuted in California, the Department of State was of the opinion that after having surrendered to Mexico one Felix, the kidnapper, the United States was under no obligation to comply with the demand of Mexico for the surrender of Martinez as well. It was observed that as the latter was being prosecuted by the State of California, the Federal Government felt itself unable to secure his release from custody. For. Rel. 1906, II, 1121–1122.

45 Award of the Permanent Court of Arbitration of the Hague in the case of Savarkar, between Great Britain and France, Feb. 24, 1911, this Journal, V, 520; see also editorial comment, id., V, 208; Oppenheim, 2d ed., § 332, and periodical literature there cited.

46 See Ker v. IIIinois, 119 U. S. 436; Ex parte Wilson, 140 8. W. Rep. 98; Mr. Bacon, Acting Secy, of State, to the Mexican Chargé, June 22, 1906, For. Rel. 1906, II, 1121.

47 United States v. Rauscher, 119 U. S. 407, 430. The prisoner having been surrendered by Great Britain on a charge of the murder of one Janssen on the high seas, pursuant to the treaty of 1842, was indicted and tried under § 5347 Rev. Stat, charging him with cruel and unusual punishment of the same man. This offense was not embraced in those made extraditable by the treaty, which, moreover contained no express provision relative to the prosecution of a person surrendered for any offense other than one specified in the agreement. The case came before the Supreme Court of the United States on a certificate of division of opinion between the judges of the United States Circuit Court for the Southern District of New York, arising after verdict of guilty and before judgment, on a motion in arrest of judgment.

Concerning the Rauscher case and for a summary of the judicial history of the subject in the United States, see Moore, Dig., IV, 310-311; also Moore, Extradition, I, § 187, pp. 276–280.

48 119 U. S. 407, 423–424. See also opinion of Gray, J., concurring, id., 433.

49 Id., 419–420.

50 See Mr. Fish, Secy, of State, to Mr. Hoffman, Mar. 31, 1876, For. Rel. 1876, 210, 215. Concerning the Winslow case, see For. Rel. 1876, 204–309, Appendix A, id., Moore, Extradition, I, § 150; Moore, Dig., IV, 306–309 and documents there cited. Concerning case of one Lawrence, see Moore, Extradition, I, § 151.

51 See report of proceedings in England in case of Alice Woodhall, Moore, Extradition, 1, § 166

Respecting the application of the principle announced in the Rauscher case, in relation to certain treaties, see Cosgrove v. Winney, 174 V. S. 64; In re Rowe, 77 Fed. Rep. 161; Cohn v. Jones, 100 Fed. Rep. 639; Johnson v. Browne, 205 U. S. 309; Collins v. O’Neil, 214 U. S. 113; also Moore, Dig., IV, 312–318, and documents there cited; Frederick Van Dyne, in Cyc. of Law and Procedure, XIX, 81–82.

Civil Suits. Relative to the question whether a fugitive surrendered pursuant to the terms of an extradition treaty may, prior to a reasonable opportunity to leave the country after his discharge from custody, be arrested in or otherwise be made answerable to a civil action, see Moore, Extradition, I, §§ 178–187, and cases there discussed; documents cited in Moore, Dig., IV, 327-328; cases cited by Frederick Van Dyne in Cyc. Law & Proa, XIX, 82. See also express provision in Art. VII, treaty with France, Jan. 6, 1909, Charles’ Treaties, 36.

52 See, for example, Art. III , treaty with Italy, March 23, 1868, Malloy’s Treaties, 967; Art. IV, treaty with Portugal, May 7, 1908, id., 1469.

53 See Art. III, treaty with Great Britain, July 12, 1889, Malloy’s Treaties, I, 741; Art. VIII, treaty with the Argentine Republic, Sept. 26, 1896, id., I, 27. Relative to the application of the British treaty, see Cosgrove v. Winney, 174 U. S. 64; Bryant

v. United States, 167 U. S. 104; Johnson v. Browne, 205 U. S. 309; Cohn v. Jones, 100 Fed. Rep. 639; correspondence with Great Britain in 1891, re Leda Lamontagne, Moore, Dig., IV, 314–315 and documents there cited.

54 See Art. VII, treaty with France of Jan. 6, 1909, U. S. Treaty Series, No. 561, Charles’ Treaties, 36.

See also correspondence between Mr. Sternburg, German Ambassador, and Mr. Root, Secretary of State, in 1907, with respect to the operation of the existing extradition treaty with Germany, containing no provision as to the circumstances when a person extradited thereunder might be prosecuted and punished for an offense committed prior to extradition. For. Rel. 1907,1, 517–519.

55 See, for example Art. VIII, treaty with Norway, June 7, 1893, Malloy’s Treaties, II, 1303; Art. VIII, treaty with Denmark, Jan. 6, 1902, id., I, 393. According to Art. IX of the treaty with Switzerland, May 14, 1900, the consent of the accused is to be expressed in open court and entered upon the record, id., II, 1774.

56 See Art. IX, treaty with Peru, Nov. 28, 1899, Malloy’s Treaties, II, 1448; Art. III, treaties with Uruguay and Paraguay, March 11, 1905, id., II, 1826. See correspondence, 1894–1895, with the German Embassy at Washington relative to the consent of Jacob David to trial in IIIinois for an offense other than that for which he was extradited from Prussia, pursuant to the treaty of June 16, 1852, which contained no provision relative to the matter. For. Rel. 1895, I, 488–497, contained in part in Moore, Dig., IV, 320–326. See also documents id., IV, 319 and 326.

57 This provision frequently appears. See, for example, Art. IV, treaty with El Salvador, April 11, 1911, Charles’ Treaties, 109.

58 Malloy’s Treaties, II, 1268.

59 Malloy’s Treaties, I, 148. Similar provision is to be found in Art. III, treaty with Belgium, Oct. 26, 1901, id., I, 107; Art. III, treaty with Guatemala, Feb. 27, 1903, id., I, 880; Art. III, treaty with Nicaragua, March 1, 1905, id., II, 1295; Art. III, treaty with San Marino, Jan. 10, 1906, id., II, 1600.

60 See Art. III, treaty with Luxemburg, Oct. 29, 1883, Malloy’s Treaties, I, 1055; Arts. XII and XIII, treaty with Mexico, Feb. 22, 1899, id., I, 1189.

61 Collins v. O’Neil, 214 U. S. 113; affirming in re Collins, 151 California 340. Declared Peckham, J., in the course of the opinion of the court:

“It is impossible to conceive of representatives of two civilized countries solemnly entering into a treaty of extradition, and therein providing that a criminal surrendered according to demand, for a crime that he has committed, if subsequently to his surrender he is guilty of murder or treason or other crime is, nevertheless, to have the right guaranteed to him to return unmolested to the country which surrendered him. We can imagine no country, by treaty, as desirous of exacting such a condition of surrender or any country as willing to accept it.” (Id., 122–123.)

62 See, for example, Art. VIII, treaty with France, Jan. 6, 1909, Charles’ Treaties, 36. Concerning this treaty see editorial comment, this Journal, V, 1060.

63 See, for example, Art. V, treaty with the Dominican Republic, June 19, 1909, Charles’ Treaties, 27; Art. V, treaty with El Salvador, April 18,1911, id., 109; Art. V, treaty with Spain, June 15, 1904, Malloy’s Treaties, II, 1715.

64 Art. VIII, treaty with Switzerland, May 14, 1900, Malloy’s Treaties, II, 1773. See also Art. II, convention concluded by Central American States at Central American Peace Conference, Washington, Dec. 20, 1907, For Rel. 1907, II, 702.

Miscellaneous Provisions. It may be observed that the more recent treaties of the United States make provision for the deferring of extradition where the accused is being prosecuted in the state upon which requisition is made, for an offense there committed, until he is entitled to liberation. (See, for example, Art. VI, treaty with Guatemala, Feb. 27, 1903, Malloy’s Treaties, I, 881.)

Provision is frequently made respecting articles found in the possession of the accused and obtained through the commission of the act with which he is charged (See, for example, Art. IX, treaty with Brazil, May 14, 1897, Malloy’s Treaties, I, 149), or which may be material as evidence in making proof of the crime. (See, for example, Art. X, treaty with Spain, June 15, 1904, Malloy’s Treaties, II, 1715.)

65 See Cushing, Atty-Gen., 7 Op. 6; see also Moore, Extradition, § 219.

66 See, for example, Art. X, convention with Brazil, May 14, 1897, Malloy’s Treaties, I, 150.

According to Art. IX of the treaty with Mexico of Feb. 22,1899, it is provided that:

“In the case of crimes or offenses committed or charged to have been committed in the frontier states or territories of the two contracting parties, requisitions may be made either, through their respective diplomatic or consular agents as aforesaid, or through the chief civil authority of the respective state or territory, or through such chief civil or judicial authority of the districts or counties bordering on the frontier as may for this purpose be duly authorized by the said chief civil authority of the said frontier states or territories, or when, from any cause, the civil authority of such state or territory shall be suspended, through the chief military officer in command of such state or territory, and such respective competent authority shall thereupon cause the apprehension of the fugitive, in order that he may be brought before the proper judicial authority for examination.” (Malloy’s Treaties, I, 1188.)

See also Art. III of convention with the Netherlands, January 18, 1904, extending to the island possessions and colonies of the contracting parties the extradition treaty of June 2, 1887, Malloy’s Treaties, II, 1272; also Art. XIII, of treaty with France of January 6, 1909, respecting the requisition for the surrender of a fugitive criminal who has taken refuge in a colony or foreign possession of either contracting party, Charles’ Treaties, 37.

67 Provision is frequently made, as in Art. IX of the treaty with Nicaragua of March 1, 1905 (Malloy’s Treaties, II, 1296), for the provisional detention of the fugitive prior to the presentation of a formal demand for his surrender. See also Benson v. McMahon, 127 U. S. 457; In re Adutt, 55 Fed. Rep. 376; In re Orpen, 86 Fed. Rep. 760; In re Schlippenbach, 164 Fed. Rep. 783.

68 See Gushing, Atty-Gen., 8 Op. 40; also Bonaparte, Atty-Gen., July 10, 1908, For. Rel. 1908, 595.

Relative to applications by the United States for the extradition from foreign countries of fugitives from justice, see general circular of the Department of State, October, 1892, Moore, Dig., IV, 356; circular relative to the extradition of fugitives from the United States in British jurisdiction, May, 1890, Moore, Dig., IV, 359; documents contained and cited in Moore, Dig., IV, 362–368 relative to extradition of fugitives from Mexico.

69 See Benson v. McMahon, 127 U. S. 457; In re Adutt, 55 Fed. Rep. 376; In re Orpen. 86 Fed. Rep 760; In re Schlippenbach, 164 Fed. Rep. 783; Ex parte Charlton, 185 Fed. Rep. 880.

See also Mr. Bayard, Secy, of State, to Mr. West, Feb. 16, 1886, MS. Notes to Great Britain, XX, 189, Moore, Dig., IV, 371.

70 See Mr. Frelinghuysen, Secy, of State, to Mr. Barca, May 23, 1882, MS. Notes to Spain, X, 204, Moore, Dig., IV, 370; Mr. Gresham, Secy, of State, to Prince Cantacuzene, Russian Minister, Dec. 13, 1893, MS. Notes to Russia, VIII, 32, Moore, Dig., IV, 372.

It is to be observed that Art. VIII of the treaty with Mexico of Feb. 22, 1899, provides that after the demanding country has fulfilled specified requirements relative to requisition and documentary proofs, “the proper executive authority of the United States of America, or of the United Mexican States, as the case may be, shall then cause the apprehension of the fugitive.” (Malloy’s Treaties, I, 1187).

71 The conventions of the United States providing for the provisional detention of fugitives are not uniform. Thus, for example, Art. IV of that with Chile of April 17, 1900, declares that the proper course in the United States shall be “to apply to a judge or other magistrate authorized to issue warrants of arrest in extradition cases and present a complaint on oath, as provided by the statutes of the United States” (Malloy’s Treaties, 1,194). Others, such as Art. IV of the treaty with Cuba of April 6, 1904, provide that a complaint “shall be made by an agent” of the demanding government “before a judge or magistrate etc.” (Malloy’s Treaties, I, 369.) In certain other conventions, such as Art. IX of convention with Guatemala of February 27, 1903, it is declared that “each government shall endeavor to procure the provisional arrest of such criminal and to keep him in safe custody” for a specified period of time to await the production of documents upon which the claim for extradition is founded. (Malloy’s Treaties, I, 882.) It is not believed that this provision is intended to contemplate the arrest of a fugitive in the United States save on a complaint under oath. Nevertheless, it is significant of what the political department believes to be a sufficient compliance with the existing law. When the United States agrees to procure the arrest of a fugitive, it seems to undertake by implication that its own officers shall, under certain contingencies, become the agents of the demanding government for the purpose of swearing to complaints.

72 See Mr. Bayard, Secy, of State, to Mr. Parkhurst, No. 18, Jan. 28,1889, For. Rel. 1889, 50. 53, Moore, Dig., IV, 382; Mr. Moore, Assist. Secy, of State, to the Attorney-General. May 26, 1898, 227 MS. Dom. Let. 651, Moore, Dig., IV, 383. See also Moore, Extradition, I, 395–407.

73 See comment of Prof. Moore, relative to a communication of Mr. Hill, Acting Secy, of State, to Mr. Aspiroz, Mexican Ambassador, No. 174, May 14, 1901, MS. Notes to Mexican Legation, X, 585, Moore, Dig., IV, 384.

74 See “Concerning the Interpretation of Treaties,” this Journal, III, 46; also Wigmore, Evidence, IV, 3470.

75 This is substantially the position taken by the United States as to the interpretation of its extradition treaty with Italy of February 8,1868. See Moore, Extradition, I, § 141.

76 It may be observed that under certain circumstances a national court, as distinguished from an international tribunal, may feel itself fettered in the task of interpretation by the position taken by the political department of its own government, even subsequent to the time of negotiation. See Charlton v. Kelly, 229 U. S. 447, 476. Compare, Ex parte Charlton, 185 Fed. Rep. 880, 886.

77 See Johnson v. Browne, 205 U. S. 309.

78 See Grin v. Shine, 187 V. S. 181, 184, where Brown, J., speaking for a unanimous court declared:

“In the construction and carrying out of such treaties the ordinary technicalities of criminal proceedings are applicable only to a limited extent. Foreign Powers are not expected to be versed in the niceties of our criminal laws, and proceedings for a surrender are not such as put in issue the life or liberty of the accused. They simply demand of him that he shall do what all good citizens are required, and ought to be willing to do, viz., submit themselves to the laws of their country. Care should doubtless be taken that the treaty be not made a pretext for collecting private debts, wreaking individual malice, or forcing the surrender of political offenders; but where the proceeding is manifestly taken in good faith, a technical non-compliance with some formality of criminal procedure should not be allowed to stand in the way of a faithful discharge of our obligations. Presumably at least, no injustice is contemplated, and a proceeding which may have the effect of relieving the country from the presence of one who is likely to threaten the peace and good order of the community, is rather to be welcomed than discouraged."

See also Benson v. McMahan, 127 U. S. 457, 466–467; Wright v. Henkel, 190 U S. 40, 57; Pierce v. Creecy, 210 U. S. 387,405. Holmes, J., in the opinion of the court in Glucksman v. Henkel, 221 U. S. 508, 512, declared:

“It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common law. But it is a waste of time. For while of course a man is not to be sent from the country merely upon demand or surmise, yet if there is presented, even in somewhat untechnical form according to our ideas such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender."

See also United States v. Greene, 146 Fed. Rep. 766.

79 See Moore, Extradition, I, § 86 where the learned writer says: “The principle that a treaty is not to be held to operate retroactively in respect to vested rights does not apply to conventions of extradition. It is a general principle that such conventions apply to offences committed prior to their conclusion, unless there is an express limitation. A fugitive has no vested right of asylum; nor does the provision in the Constitution of the United States against the enactment of ex post facto laws apply.” Citing In re Angelo de Giacomo, 12 Blatchf. 391, also Mr. Evarts, Secy, of State, to Mr. Seward, Jan. 30, 1880; MSS. Dom. Let.

See also Mr. Hay, Secy, of State, to Mr. Aspiroz, Mexican Ambassador, No. 17, July 11, 1899, MS. Notes to Mexican Legation, X, 469, Moore, Dig., IV, 269, concerning date of taking effect of the extradition treaty with Mexico, February 22, 1899.

Most-Favored-Nation Clause. It is generally believed that extradition treaties do not fall within the most-favored-nation clause. See Cushing, Atty-Gen., 6 Op. 148, 155; Moore, Dig., V, 311.

Deserting Seamen. Numerous consular conventions and commercial treaties of the United States make provision for the surrender of deserting seamen through the intervention of consular officers. As the end sought to be accomplished and the procedure prescribed differ sharply from those which characterize extradition, the agreements of the United States have not been embraced in extradition conventions. The statutory law of the United States is, however, contained in the chapter on extradition.

Expenses. “Every treaty of extradition to which the United States is a party contains a provision that the expenses of extradition shall be borne by the demanding government, and it is the practice for the demanding government to defray the expenses of the proceedings whether the fugitive is eventually surrendered or not.” (Frederick Van Dyne in Cyc. Law & Proc, XIX, 79.) For the texts of the provisions of the several extradition conventions of the United States see Malloy’s Treaties. See also Moore, Extradition, Chap. XVIII, I, 598–610; Moore, Dig., IV, 408–411, and documents there cited.

80 See, for example Art. I of convention with Italy, March 23, 1868, Malloy’s Treaties, I, 967; also Art. I of treaty with San Marino, Jan. 10, 1906, id., II, 1598.

81 See Mr. Blaine, Secy, of State, to the Minister of the Netherlands, May 6, 1889, relative to the case of C. E. Plugge, Moore, Extradition, 1,133; telegram of the Acting Secretary of State, to Mr. Leishman, Ambassador to Turkey, Oct. 10,1907, For. Rel. 1907, II, 1070. See also Ex parte Fudera, 162 Fed. Rep. 591, in which the learned judge cites Moore, Extradition, § 102; “Report of a Recent Extradition Case, re Macaluso,” Ills. L. R., VII, 237; Ex parte La Mantia, 206 Fed. Rep. 330.

82 That this requirement has not always been appreciated by demanding governments is apparent from Ex parte Fudera, 162 Fed. Rep. 591, and Ex parte La Mantia, 206 Fed. Rep. 330.

83 See, for example, Art. I, treaty with Brazil, May 14,1897, Malloy’s Treaties, 1,147.

84 See President Adams, to Mr. Pickering, Secy, of State, May 21, 1799, relative to the case of one Nash, alias Robbins, 8 John Adams’s Works, 651, Moore, Dig., IV, 281–282; Moore, Extradition, §§ 105 and 106, concerning the cases respectively of Kent and of Markham.

85 See Cushing, Atty-Gen., 8 Op. 73, 84. See also Mr. Buchanan, Minister to England, to Mr. Marcy, Secy, of State, Aug. 3, 1855, 67 MS. Despatches from Great Britain, Moore, Dig., IV, 282.

In a case of concurrent jurisdiction, such as, for example, where an offense was committed on a merchant vessel of the demanding state on the high seas, resulting in the death of the victim after the vessel reached a port of the state on which requisition was made, the latter would doubtless be justified in asserting itself the right to prosecute the offender, and in declining to surrender him, if its authorities saw fit to take such a course. See Mr. Fish, Secy, of State, to Mr. Watson, Aug. 15, 1874, MS. Notes to Great Britain, XVI, 413, Moore, Dig., IV, 281. See also Sternaman v. Peck, 83 Fed. Rep. 690. Compare situation in case of Peter Lynch, Moore, Extradition, I, § 107.

86 See the decision of Lowell, J. in re Taylor, 118 Fed. Rep. 196, and the comment thereon in Moore, Dig., IV, 280.

87 See Williams, Atty-Gen., 14 Op. 281, re Case of Carl Vogt; Compare In re Stupp, 11 Blatch. 124.

“It has been announced by the Department of State that an offence committed in a country where extraterritorial jurisdiction is exercised by foreign Powers is not committed within the jurisdiction of such Powers in the sense of the extradition treaties, so as to give the government of the country of which the offender is a citizen or subject the right to demand his surrender from the territory of the United States,” (Moore, Extrad. I, § 108) quoting Mr. Cadwalader, Acting Secy, of State, to Mr. Bingham, American Minister to Japan, Aug. 18,1875, For. Rel. 1875, II, 821.

88 See report of Jan. 9,1900, Magoon’s Reports, 523, Moore, Dig., IV, 285; letter of the Secy, of War, Aug. 17, 1900, quoted in Mr. Hill, Acting Secy, of State, to Mr. Aspiroz, Mexican Ambassador, No. 101, Sept. 4, 1900, MS. Notes to Mexican Legation, X, 537, Moore, Dig., IV, 285.

It is not believed that the term “territories” has reference to a foreign country where rights of extraterritorial jurisdiction are exercised by the state on which requisition is made. See Mr. Hunter, Second Assist. Secy, of State, to Mr. G. F. Seward, Consul-General, Aug. 31, 1874, For. Rel. 1874, 338; Mr. Cadwalader, Assist. Secy, of State, to same, Oct. 23,1874, id., 347; Moore, Extradition, I, § 109.

89 See In re Newman, 79 Fed. Rep. 622.

90 See Mr. Blaine, Secy, of State, to Mr. Denby, Minister to China, No. 680, Dec. 7, 1891, For. Rel. 1892, 74, Moore, Dig., IV, 283.

91 See Mr. Lincoln, Minister to England, to Mr. Blaine, Secy, of State, No. 480, June 24, 1891, MS. Despatches from England, Moore, Dig., IV, 284.

Domestic Legislation for Extradition to Foreign Territory under Military Occupation. The enactment by a state of a law such as the amendment by Congress of June 6,1900 of § 5270 R. S., providing for the arrest within its territory of persons found therein after having violated certain criminal laws within foreign territory occupied by or under the control of the state, and establishing appropriate procedure for the surrender of such persons to the military governor of such territory, is merely an assertion of a right of jurisdiction by the sovereign in actual control of the place of refuge, and that also where the crime was committed. It is not based upon treaty. Nor is it responsive to any international obligation. In so far as the law of nations is concerned such legislation is essentially domestic in character. See Neely v. Henkel, 180 U. S. 109, in which the Act of June 6, 1900, was applied to Cuba, while occupied by the United States. See also Mr. Hay to Mr. von Mumm, Oct. 25, 1899, For. Rel. 1899, 318–319, Moore, Dig., IV, 265–266.

The Panama Canal Act of August, 1912, extends the operation of the extradition treaties of the United States to the territory embraced within the Isthmian Canal Zone. (Session Laws, 62 Cong., 2 Sess., 1912, p. 569.)

92 The language in the text is that employed in the caption of the opinion by Gushing, Atty-Gen., 8 Op. 306, cited in Moore, Dig., IV, 286.

93 See J. B. Moore, as to the case of Salvadorean refugees, Am. L. Rev. XXIX, 1, 5, where the learned writer declares that “There is no requirement in the treaties that the individual whose surrender is demanded shall have ‘fled’ from justice, and nothing is more common than to deliver up under their stipulations persons who are not fugitives in fact.” See also In re Ezeta, 62 Fed. Rep. 972, 978.

94 See Mr. Hay, Secy, of State, to Baron Fava, Italian Ambassador, No. 654, March 8,1901, MS. Notes to Italian Legation, IX, 508, Moore, Dig., IV, 286.