§ 116. The Constitution of the United States provides, (art. 4, s. 2,) 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."

The legislature interposes the

becomes then rather diplomatic and international. judicial inquiry as a condition to the surrender under a treaty, but does not give the judicial magistrate power to require a surrender.

The question still remains, whether, in the absence of treaties and statutes, the executive can surrender a fugitive criminal. The general tone of the judicial decisions and of political debate has been adverse to such a right; yet it was exercised in a remarkable case in 1864,—that of Arguelles. This person, being governor of a district in Cuba in which a cargo of Africans had been landed from a slave-ship and set free by the authorities, had reported officially to the government that one hundred and forty-one of them had died of small-pox; but it was discovered that he had sold them into slavery while in his charge, for large sums, with the aid of forged papers, and had escaped to New York. There was no treaty of extradition between Spain and the United States; but the Captain-General of Cuba and the Spanish Minister laid the matter before the Secretary of State, and requested the arrest and surrender of Arguelles, as an act of favor and comity, not only on account of the enormity of his offence, but because his presence in Cuba was found necessary to the liberation of the men he had sold into slavery. Mr. Seward, with the sanction of the President, ordered the arrest, as a purely executive act; and Arguelles was delivered to a special agent of the Spanish Government, and by him taken to Cuba. The Senate, on the 28th May, 1864, adopted a resolution requesting the President to inform them whether such a surrender had been made, and, if so, under what authority of law or treaty it was done. The President transmitted a reply, covering a report from the Secretary of State, and the documents showing the guilt of Arguelles, and the request of the Spanish Government. Mr. Seward, in his report, says: "There being no treaty of extradition between the United States and Spain, or any act of Congress directing how fugitives from justice in Spanish dominions shall be delivered up, the extradition in this case is understood by this department to have been made in virtue of the law of nations and the Constitution of the United States. Although there is a conflict of authorities concerning the expediency of exercising comity towards a foreign government, by surrendering at its request one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender upon a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals, who are offenders against the human race; and it is believed that if in any case the comity could with propriety be practised, the one which is understood to have called forth the resolution furnished a just occasion for its exercise." U. S. Dip. Corr. 1864, Part II. 60-74: Cong. Globe, 1864.

A resolution introduced into the House of Representatives, condemning this act, as a violation of the Constitution and in derogation of the right of asylum, was rejected by a large majority, and the subject referred to a committee; but it was followed by no action of Congress. An indictment was found in New York against the officer who made the arrest under the Secretary's warrant, on a charge of kidnapping, but the case has not been adjudicated; and, as no petition for habeas corpus was filed in

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§ 117. By the 10th article of the treaty concluded at dition under Washington on the 9th August, 1842, between the United ton Treaty. States and Great Britain, it was "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,74 or behalf of Arguelles before his removal from the country, the legality of the act of the Secretary has not been judicially passed upon.

Upon the matters embraced in this note, see U. S. Laws, viii. Treaties, U. S. Laws, ix. 302; Ib. xii. 84. United States v. Davis, Sumner, ii. 482. Kane's case, Howard, xiv. 103. Metzger's case, N. Y. Legal Obs. 83; Barb. i. 248; Howard, v. 176. Heilborn's case, Parker, C. R., i. 429. Holmes v. Jennison, Peters, xiv. 40. Holmes's case, Vermont R. xii. 631. Robbins's (Nash's) case, Wharton's State Trials, 392-456; and Bee, 267. Washburn's case, 4 Johns's Ch. Rep. iv. 106; Wharton's C. R. T. R. iii. 473. Veremaitre's case, Am. Law Journ. iii. 438. The British Prisoners, Woodb. and M. i. 67. Dos Santos's case, Brock. ii. 493. United States v. Stowell, Curtis, ii. 160. Opinions of Attorney-General, i. 384-392; ii. 832, 902; vi. 85, 91, 217, 227, 237, 270, 290, 431; vii. 6, 285, 536, 612. Halleck's Intern. Law, 174. Gardner's Institutes, 153-170. Mr. Webster to Lord Ashburton on the case of The Creole, Webster's Works, vi. 305. Ortolan, Règl. Intern. liv. ii. ch. 14. Klüber, europ. Völkr. § 86. Heffter, europ. Völkr. § 63. Phillimore's Intern. Law, i. §§ 360-385. Woolsey's Elements, § 79. Story's Conflict of Laws, §§ 626-628. Correspondence between Earl Russell and Mr. Adams on The Emily St. Pierre, U. S. Dipl. Corr. 1862. (See note, infrà, Rescue by Neutrals.) Nations bound by treaties of extradition must still have the right to protect themselves against being defrauded of their right to give asylum. If, for instance, a political refugee, an escaped slave, or a deserter from military service, has asylum by the practice of a nation, it will look behind the mere formal proofs of a crime committed by such a person, to see that the real object is not to get possession of him for a purpose to which the treaty does not apply. In many cases, the government of the country making the demand may not be cognizant of the motives of parties who have procured an indictment, and set on foot the proceedings for surrender.

Before the abolition of slavery in the United States, demands were sometimes made on a free State, under the extradition clause in the Constitution, for surrender, on a charge of larceny, of a colored man who had fled from slavery, the charge being perhaps for stealing a horse with which he made his escape; and the free States have refused the surrender, when satisfied that the real object was to reduce the man to slavery.] D.

[74 "Piracy" in Extradition Treaties. — The meaning of the word "piracy" in this treaty has received a construction by the Court of Queen's Bench in England, in the case of the crew of the Gerity. (Tirnan's case, Best & Smith, v. 643.) The American schooner Gerity sailed from Matamoras, in November, 1863, with a cargo of cotton, bound to New York. Six or more men embarked in her as passengers, and, when about seventy miles out at sea, rose and took possession of the vessel, set the master adrift in a boat, took the vessel to British Honduras, and, after selling the cargo, abandoned her. Three of these men, being at Liverpool, were arrested by a warrant issued by a commissioner under the treaty of extradition of 1842, by direction of a Secretary of State, at the request of the United States Minister. The prisoners contended that they were acting under authority of the Confederate States, whom Great

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