Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the dam was not an obstruction to navigation, but this ruling was reversed by the supreme court of the United States holding that the jurisdiction of the general government over interstate commerce and its natural highways places in that government the right to take all necessary measures to preserve the navigability of the navigable watercourses of the country, and that the prohibition against obstructing the navigable capacity of any waters included an obstruction not only in that part of the stream that was navigable, but also anything destroying the navigable capacity of a navigable stream wherever or however done.86 The preservation of the navigable waters of the United States for the

se United States v. Rio Grande Dam & I. Co., 174 U. S. 690, 19 Sup. Ct. Rep. 770, 43 L. ed. 1136. The case in the lower court is reported in 9 N. Mex. 292, 51 Pac. 674. So far as the question of treaty was involved, Mr. Justice Brewer said: "Neither is it necessary to consider the treaty stipulations between this country and Mexico. It is true that the Rio Grande, for several hundred miles above its mouth, forms the boundary between this country and Mexico, and that the seventh article of the treaty between the United States and Mexico of February 2, 1848 (9 Stats. at Large 928), stipulates that 'the River Gila and the part of the Rio Bravo del Norte lying below the southern boundary of New Mexico being agreeably to the fifth article, divided in the middle between the two Republics, the navigation of the Gila and of the Bravo below said boundary shall be free and common to the vessels and citizens of both countries, and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right, not even for the purpose of favoring new methods of navigation. . . . . The stipulations contained in the present article shall not impair the territorial

rights of either Republic within its established limits.' But by the fourth article of the Gadsden treaty of December 30, 1853 (10 Stats. at Large, 1034), it was provided that 'the several provisions, stipulations, and restrictions contained in the seventh article of the treaty of Guadalupe Hidalgo shall remain in force only so far as regards the Rio Bravo del Norte, below the initial of the said boundary provided in the first article of this treaty, that is to say, below the intersection of the 31 degree, 47' 30" parallel of latitude, with the boundary line established by the late treaty dividing said river from its mouth upwards, according to the fifth article of the treaty of Guadalupe.' And on December 26, 1890, a convention was concluded between the United States and Mexico (26 Stats. at Large, 1512), which provided for an international boundary commission, to which was given, by article five, the power to inquire, upon complaint of the local authorities, whether works were being constructed in the Rio Grande prohibited by any prior treaty stipulations. There is no suggestion in the bill that any action by these commissioners was invoked, although it appears from one of the affidavits that the commission has been

benefit of its own citizens is a matter of as much concern as any obligation created by treaty or arising from the principles of international law, in favor of other nations or their citizens.

duly constituted. Now it is debated as much within the territory of the by counsel whether the construction

of a dam at the place named in New Mexico, a place wholly within the territorial jurisdiction of the United States, is a violation of any of the treaty stipulations above referred tothey being, primarily at least, limited to that portion of the river which forms the boundary line between the two nations; and also whether the fact that the Rio Grande is partially within the limits of Mexico would give that nation, under the rules of international law, any right to complain of the total appropriation of its waters for the legitimate uses of the people of the United States. Such questions might under some circumstances be interesting and important; but here the Rio Grande, so far as it is a navigable stream, lies Treaties-22

United States as in that of Mexico, it being, where navigable, the boundary between the two nations, and the middle of the channel being the dividing line. Now, the obligation of the United States to preserve for their own citizens the navigability of its navigable waters is certainly as great as any arising by treaty or international law to other nations or their citizens, and if the proposed dam and appropriation of the waters of the Rio Grande constitute a breach of treaty obligations or of international duty to Mexico, they also constitute an equal injury and wrong to the people of the United States."' United States v. Rio Grande Dam & I. Co., 174 U. S. 690, 19 Sup. Ct. Bep. 770, 43 L. ed. 1140.

CHAPTER XI.

TREATIES OF EXTRADITION AND PROCEEDINGS THEREUNDER.

§ 298. Extradition dependent upon treaty.

§ 299. Extradition included within treaty-making power.

Delivery to the United States as a matter of comity.
No power to reciprocate.

§ 300.

§ 301.

§ 302.

Escape effected by means of foreign vessel.

[blocks in formation]

§ 321.

Retroactive effect of treaties.

§ 322. Special stipulation as to time of taking effect.

[blocks in formation]

§ 334. Attempt against life of President or other officers.

[blocks in formation]
[blocks in formation]

§ 344. Who may act as magistrate.

345. Sufficiency of the complaint.

§ 346. Precision of indictment not required.

§ 347. Ordinary technicalities not applicable.
$348. Arrest of fugitive.

§ 349. Provisional arrest.
350. Evidence required.
$351. Foreign depositions.

§ 352. Evidence on behalf of fugitive.

§ 353. Habeas corpus proceedings.

§ 354. Appeal and not writ of error.

§ 355. Consul may appeal.

356. Conflicting evidence.

§ 357. Surrender of fugitive an executive function. § 358. Surrender upon different charge.

§359. Refusal to surrender.

§ 360. Release of debtor in jail under civil process.

§ 361. Delivery within two months after commitment.

§ 362. Transit across the United States.

§ 363. Restoration of property.

§ 364. Expenses of extradition.

365. Expenses of district attorney.

§ 366. Method for payment of expenses.

§ 367. Deserting seamen.

§ 368. Gradual extension of list of crimes included in treaties. $369. Regulations of State Department.

§ 298. Extradition dependent upon treaty.-In the absence of a treaty, one country is under no obligation to deliver up fugitives from justice to another, although as a matter of comity between nations such deliveries have often been made. "The laws of nations embrace no provision for the surrender of persons who are fugitives from the offended laws of one country to the territory of another. It is only by treaty that such surrender can take place."'1

In 1834 the British Minister requested the extradition of a person charged with murder in England, but the reply was made

1 Mr. Rush, Secretary of State, to Mr. Hyde de Neuville, April 9, 1817, MS. Notes to For. Leg., II, 218.

that where no treaty existed on the subject, the authority of the Executive to exercise an act having such an important effect upon the rights of personal security was more than questionable, and that the case was "without any remedy in the competency of this government to apply."2 Mr. Webster, while Secretary of State, stated: "Although such extradition is sometimes made, yet, in the absence of treaty stipulations, it is always a matter of comity or courtesy. No government is understood to be bound by the positive law of nations to deliver up criminals, fugitives from justice, who have sought an asylum within its limits," 3 It is well settled, whatever may be said by writers on international law, that there is no obligation upon the United States to deliver fugitives from justice except as authorized by and in compliance with treaty provisions. "In the United States, the general opinion and practice have been that extradition should be declined in the absence of a conventional or legislative provision." 5

2 Mr. Forsyth, Secretary of State, to Mr. Vaughan, July 7, 1834, MS. Notes to British Leg., VI, 1.

3 6 Webster's Works, 399, 405. United States v. Rauscher, 119 U. S. 407, 17 Sup. Ct. Rep. 234, 30 L. ed. 425; Matter of Metzger, 5 How. (U. S.) 176, 12 L. ed. 104; Matter of Sheazle, Fed. Cas. No. 12,734; 1 Wood. & M. (U. S.) 66; United States v. Watts, 8 Saw. (U. S.) 370, 14 Fed. 130; Ex parte McCabe, 46 Fed. 363, 12 L. R. A. 589; Adriance v. La Grave, 59 N. Y. 110, 17 Am. Rep. 317; Commonwealth v. Hawes, 13 Bush (Ky.), 697, 26 Am. Rep. 242; Commonwealth v. Deacon, 10 Serg. & R. 125; Respublica v. De Longchamps, 1 Dall. (Pa.) 111, 1 L. ed. 59; Sullivan's Case, 1 Op. Atty. Gen. 509; Huggen's Case, 2 Op. Atty. Gen. 452; Case of Two Portuguese Seamen, 2 Op. Atty. Gen. 559; Dewit's Case, 3 Op. Atty. Gen. 661; Wing's Case, 6 Op. Atty. Gen. 431.

Terlinden v. Ames, 184 U. S. 270, 289, 22 Sup. Ct. Rep. 484, 46 L. ed.

534, 545, per Mr. Chief Justice Ful-
ler. Mr. Buchanan, while Secretary
of State, said: "But the practice of
nations tolerates no right of extradi-
tion. Whatever elementary authors
may say to the contrary, one nation
is not bound to deliver up persons
accused of crimes who have escaped
into its territories on the demand of
another nation against whose laws
the alleged crime was committed.
The government of the United States
has from the very beginning acted
on this principle. Mr. Jefferson,
when Secretary of State under the
administration of General Washing-
ton, declared that 'the laws of this
country take no notice of crimes com-
mitted out of their jurisdiction.
most atrocious offender, coming with-
in our pale, is received by them as
an innocent man, and they have au-
thorized no one to seize or deliver
him.' It has been contrary to the
practice of the United States even
to request as a favor that the gov-
ernment of another country should

The

« ΠροηγούμενηΣυνέχεια »