York of the 5th April, 1822, c. 148, gave facility to the surrender of fugitives, by authorizing the governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death or imprisonment in the state prison; provided the evidence of criminality was sufficient, by our laws, to detain the party for trial on a like charge. (a) Such a legislative provision was requisite, for the judicial power can do no more than cause the fugitive to be arrested and detained, until sufficient means and opportunity have been (a) The N. Y. Revised Statutes, i. 164, sec. 8, 9, 10, 11, have adopted and continued the same provision. Rev. 378; see Re De Giacomo, 12 Blatch. 391; 24 Revue de Droit International, 553, 563. In Reg. v. Ashforth, 36 Sol. Journ. 234, the English Divisional Court refused to extradite a prisoner for new extradition offences, under the treaty of 1890 with this country, which were not clearly shown to have been committed after the time when that treaty came into force. Under U. S. Rev. Stats. § 5270, the evidence before the examining magistrate need not be such as would be required at the trial of the accused, but should amount to probable cause for believing him guilty; under that statute, and our treaty with Salvador, the jurisdiction to hold fugitives from that country, whose surrender is demanded, is not affected by the manner in which they entered this country; and the evidence of their criminality is to be judged by the laws both of the United States and of the State in which they are arrested. In re Ezeta, 62 Fed. Rep. 964, 972; see 28 Am. L. Rev. 784, 879. In foreign extradition, the accused may be arrested, without a requisition from the foreign government, upon a warrant issued by a U.S. commissioner, on complaint of a consul of such government. Benson v. McMahon, 127 U. S. 457; In re Luis Oteiza, 136 U. S. 330; In re Herres, 33 Fed. Rep. 165; In re Adutt, 55 id. 376; In re Mineau, 45 id. 188. If certain of the alleged offences are extraditable, it is immaterial that others are not. Re Bellencoutre, [1891] 2 Q. B. 122. When the accused is held for foreign extradition on a charge of theft, the stolen property cannot, it seems, be held for the purposes of the trial abroad. The Queen v. Lushington, [1894] 1 Q. B. 420. Delay for several years to prosecute abroad an offender reformed meanwhile in England is there regarded with suspicion. Francicis's Case, 30 L. J. 196. Whether the offence is "of a political character," within the meaning of a treaty is a mixed question of law and fact; a "political crime" is a crime "incidental to and forming a part of political disturb ances." In re Castioni, [1891] 1Q. B. 149, 157, 166. Complicity in the Anarchist use of explosives in Paris has recently been held not to be a political offence giving an asylum in England; the court of first instance regarding it as aimed at all governments, and the Queen's Bench Division regarding the outrages as directed primarily at citizens, and as not an attempt to impose government by a party. See In re Meunier, [1894] 2 Q. B. 415; [1894] W. N. 118; 10 Law Quart. Rev. 269. As to political offences, see also 24 Revue de Droit Int., 17; 11 id. 475; 14 id. 403; 1 Moore on Extradition, ch. 8. afforded for the discharge of this duty to the proper organ of communication with the power that makes the demand. (b) 1 (b) The Constitution of the United States has provided for the surrender of fugitives from justice as between the several states, in cases of treason, felony, or other crime;" but it has not designated the specific crimes for which a surrender is to be 1 Wheat. p. 2, c. 2, Dana's note 73. A judicial tribunal has not authority, independently of statute or treaty, to make extradition of a criminal. It was done in the case of Arguelles, 1864, by Mr. Seward, as an executive act, but the right of the executive power to do so is perhaps still open to question. In re Kaine, 14 How. 103, 112. It would seem clear that a state is under no obligation to surrender a criminal, unless it has agreed to do so by treaty. See further Halleck, c. 7, § 28; Twiss, pt. 1, § 221. As to the surrender of fugitives as between the several states, see Matter of Voorhees, 3 Vroom (32 N. J.), 141; Kentucky v. Dennison, 24 How. 66; Matter of Clark, 9 Wend. 312; post, ii. 32, n. 1. The United States have now extradition treaties with nearly all civilized nations. Dana's Wheaton, note 73; Lawrence's Wheaton, note 78. Some interesting questions have arisen under them in the courts of this country and of England. In Anderson's case, a slave killed a man in Missouri, and escaped to Canada, where he was demanded as a person charged with murder. The act did not amount to murder by the common law or law of England, and after the provincial court of Queen's Bench had ordered his surrender (20 U. C. Q. B. 124), it is said that the Canada Common Pleas discharged the prisoner. Dana's Wheaton, note 75; Abdy's Kent, 128, citing 11 Canada, C. P. 1; [see also 30 L. J. N. s. Q. B. 129; 6 B. & S. 525;] and also referring to Müller's Case, Times, Sept. 9 and 13, 1864. Probably in general the terms of the treaty with England are to be construed as applying to those acts which are recog nized throughout the United States and England as constituting the specified crime. It has been held that they do not apply to an offence made forgery by a state law only. Windsor's Case, 6 Best & Sm. 522. Other cases on forgery are Muller's Case, 5 Phila. 289; s. c. Op. Att.Gen. x. 501; United States v. Warr, 3 N. Y. Leg. Obs. 346; Matter of Heilbronn, 12 id. 65; In re Farez, 7 Blatchf. 345 (under the treaty with Switzerland). On the other hand, the treaty has been held not to cover piracy jure gentium, because that is an offence punishable by all nations; but only acts made piracy by the municipal law of the nation making the demand. In re Tivnan, 5 Best & Sm. 645. [See Att.-Gen. v. Kwok-a-Sing, L. R. 5 P. C. 179.] Prisoners charged with a piracy created by act of Parliament may be given up without a statute carrying out the treaty, and before indictment. The British Prisoners, 1 W. & M. 66. See Matter of Metzger, 5 N. Y. Leg. Obs. 83 (s. c. 5 How. 176); Muller's Case, 5 Phila. 289; s. c. Op. Att.-Gen. x. 501. See generally Wheat. Dana's notes 74, 75; Lawrence's note 78; Matter of Kaine, 10 N. Y. Leg. Obs. 257; s. c. 14 How. 103. As to the conduct of proceedings. In re Henrich, 5 Blatchf. 414. As to state extradition, see People v. Curtis, 50 N. Y. 321. [The President's mandate is not necessary to the beginning of extradition proceedings. In re Hermann Thomas, 12 Blatchf. 370; In re Kelley, 2 Low. 339. A person may be extradited under a treaty, though the crime was committed and though the criminal had reached the extraditing country before the treaty was made, unless the treaty provides otherwise. In re Angelo De Giacomo, 12 Blatchf. 391.-B.] The European nations, in early periods of modern history, made provision by treaty for the mutual surrender of criminals made, and this has led to difficulties as between the states. Thus, for instance, in 1839, the Governor of Virginia made application to the Governor of New York for the surrender of three men, charged by affidavit as being fugitives from justice, in feloniously stealing and taking away from one Colley, in Virginia, a negro slave, Isaac, the property of Colley. The application was made under the act of Congress of February 12, 1793, c. 7, sec. 1, founded on the Constitution of the United States, art. 4, sec. 2, as being a case of "treason, felony, or other crime," within the Constitution and the law, and certified as the statute directed. The Governor of New York refused to surrender the supposed fugitives, on the ground that slavery and property in slaves did not exist in New York, and that the offence was not a crime known to the laws of New York, and consequently not a crime within the meaning of the Constitution and statute of the United States. But the legislature of New York, by concurrent resolutions of the 11th of April, 1842, declared their opinion to be, that stealing a slave within the jurisdiction and against the laws of Virginia was a crime within the meaning of the 2d section of the 4th article of the Constitution of the United States. The executive and legislative authorities of Virginia also considered the case to be within the provision of the Constitution and the law, and that the refusal was a denial of right. It was contended, that the Constitution of the United States recognizes the lawful existence of slaves as property, for it apportions the representation among the states on the basis of distinction between free persons and other persons; and it provides, in art. 4, sec. 2, for their surrender, when escaping from one state to another: that slaves were regarded by law as property in nearly all the states, and protected as such, and particularly in New York, when the constitution was made; that the repeal of those laws, and renunciation of that species of property, in one state, does not affect the validity of the laws, and of that species of property in another state; and that the refusal to surrender felons who steal that property in Virginia, and flee with it or without it to New York, on the ground that blacks are no longer regarded as property in New York, is a violation of the federal compact, and of the act of Congress founded thereon. This case and that of Holmes, mentioned in a preceding note, involve very grave considerations. I have read and considered every authority, document, and argument on the subject that were within my command, and in my humble view of the questions, I cannot but be of opinion that the claim of the Canadian authorities in the one case, and of the Governor of Virginia in the other case, were equally well founded, and entitled to be recognized and enforced. In the case from Canada, the jurisdiction of it belonged exclusively to the authorities of Vermont. The United States have no jurisdiction in such cases, except under a treaty provision. The duty of surrendering on due demand from the foreign government, and on due preliminary proof of the crime charged, is part of the common law of the land, founded on the law of nations as part of that law; and the state executive is to cause that law to be executed, and to be assisted by judicial process, if necessary. The statute of New York is decisive evidence of the sense of that state, and it was in every respect an expedient, just, and wise provision, in no way repugnant to the Constitution or law of the United States, for it was 66 no agreement or compact with a foreign power.” The whole subject is a proper matter of state concern, under the guidance of municipal law (stipulations in national treaties always excepted), and if there be no express statute provision, the exercise of the power must rest in sound legal dis seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, * and England and * 38 France in 1308, and France and Savoy in 1378; and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr. Ward (a) considers these treaties as evidence of the advancement of society in regularity and order. (6) cretion, as to the nature of the crime and as to the sufficiency of the proof. The law of nations is not sufficiently precise to dispense with the exercise of that discretion. But private murder, as in the Vermont case, is free of all difficulty, and it would be dealing unjustly with the aggrieved foreign government, and be eminently disgraceful to the character of the state and to our constitutional authorities, to give an asylum to fugitives loaded with such atrocity. If there be no authority in this country, state or national, to surrender such a fugitive, then it is idle to talk about the authority of the law of nations as part of the common law. Then "public law, the personification, as it were, of natural justice, becomes a mere nonentity, the beautiful figment of philosophers, and destitute of all real influence on the fortunes of mankind." (a) History of the Law of Nations, ii. 318-320. (b) By the treaty of amity, commerce, and navigation between Great Britain and the United States, in November, 1795, it was by the 27th article agreed, that persons charged with murder or forgery, seeking an asylum in the dominions of either party, should be delivered up on due requisition, provided the evidence of criminality be sufficient to justify apprehension and commitment for trial, if the offence had been committed in the jurisdiction where the requisition is made. But this treaty, on this and other points, expired by its own limitation after the expiration of twelve years. The provision was happily renewed by the treaty between the United States and the United Kingdom of Great Britain and Ireland, signed at Washington, August 9, 1842, and afterwards duly ratified. This treaty terminates the question, so far as the two countries are concerned, which had long embarrassed the councils and courts in this country. By the 10th article of the treaty it is declared, that the two powers respectively, upon requisitions by the due authorities, should deliver up to justice all persons who, being charged with the crime of murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, should seek an asylum, or should be found within the territories of the other; provided, that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed. A similar convention was made between the United States and France, and ratified at Washington, April 12, 1844; but the provision was extended to the crime of an attempt to commit murder, and to rape, and embezzlement by public officers, when the same is punishable with infamous punishment. The treaty provisions would seem to require statute provisions of the several governments to carry the treaties for surrendering fugitives more promptly into effect. The act of 8 & 9 Vict. c. 120, has such a provision in respect to the treaty of Washington in 1842; without any special provision on the subject, the power and duty of duly carrying into effect treaties of that kind would belong, exclusive of the state authorities, to the courts and magistrates of federal jurisdiction. The legisla 7. Ambassadors. Ambassadors form an exception to the general case of foreigners resident in the country, and they are exempted absolutely from all allegiance, and from all responsibility to the laws of the country to which they are deputed. (x) As they are representatives of their sovereigns, and requisite for negotiations and friendly intercourse, their persons, by the consent of all nations, have been deemed inviolable, and the instances are rare in which popular passions or perfidious policy have violated this immunity. Some very honorable examples of reture of the Kingdom of Belgium, by a law of the 1st of October, 1833, authorized the surrender of fugitives from foreign countries upon the charge of murder, rape, arson, counterfeiting the current coin or forging public bank paper, perjury, robbery, theft, peculation by public trustees and fraudulent bankrupts; but with the proviso that the law of the foreign country be reciprocal in the case, and that the judgment or judicial accusation be duly authenticated, and the demand be made within the time of limitation prescribed by the Belgic law. M. Pinheiro-Ferreira severely condemns this law, and contends for protection to the fugitive, and that the tribunals of the country to which he resorts should take cognizance of criminal cases equally as of matters of contract! See Cours de Droit Public, par Le Comm. S. PinheiroFerreira, Paris, 1830, ii. 24-34; Revue Étrangère de Législation, et d'Économie Politique, No. 2, Paris, December, 1833. Some other foreign jurists, of more established reputation, maintain the same doctrine, and hold that crimes committed in one state may, if the criminal be found in another state, be, upon demand, punished there. Hurtius, de Collis. Leg. P. Voet, de Statut. cited in Story's Comm. on the Conflict of Laws, 516-520; Martens, Law of Nations, b. 3, c. 3, sec. 22, 23; Grotius de Jure, B. & P. b. 2, c. 21, sec. 4. The latter says, that every government is bound to punish the fugitive criminal on demand, or deliver him up. But the better opinion now is, both on principle and authority, that the prosecution and punishment of crimes are left exclusively to the tribunals of the country where they are committed. Kames, Princip. of Equity, ii. 326; Merlin, Répertoire, Souveraineté, sec. 5, n. 7, pp. 757, 758; Pardessus, Droit Comm. v. art. 1467. If, indeed, the fugitive is to be tried and punished for a crime committed out of the territory, the punishment must be according to the law of the place where the offence was committed. Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur. Bartholus, cited in Henry on Foreign Law, 47. It is, however, a decided and settled principle in the English and American law, that the penal laws of a country do not reach, in their disabilities or penal effects, beyond the jurisdiction where they are established. Folliott v. Ogden, 1 H. Black. 123, 135; Lord Ellenborough, Wolff v. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v. Green, 17 Mass. 514, 539-543; Scoville v. Canfield, 14 Johns. 338, 440. (x) By the act of Mar. 1, 1893, ch. 182, (27 St. L. 497) our diplomatic representative in a foreign country may be designated of the same grade as is given by that country to its representative here. the European monarchies that an ambassador's authority expires on the death, deposi tion, or abdication of the reigning prince, does not apply as between the American republics, in which the executive power is permanent and uninterrupted. 7 A. G. The rule of public law prevailing among Op. 582. |