$299. Extradition included within treaty-making power.That the power to provide for the extradition of those charged with crime is within the treaty-making power cannot be questioned. "The power to surrender is clearly included within the treaty-making power, and the corresponding power of appointing and receiving ambassadors and other public ministers. Its exercise pertains to public policy and governmental administration is devolved on executive authority, and the warrant of

surrender is issued by the Secretary of State as the representative of the President in foreign affairs."6

Extradition may be defined as "the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender."7 Speaking of the distinction between transportation, extradition and deportation, Mr. Justice Gray said: "Strictly speaking, transportation, extradition and deportation, although each has the effect of removing a person from the country, are different things, and have different purposes. Transportation is by way of punishment of one convicted of an offense against the laws of the country. Extradition is the surrender to another country of one accused of an offense against its laws, there to be tried, and, if found guilty, punished. Deportation is the removal of an alien out of the country, simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent or those of the country to which he is taken.

§ 300. Delivery to the United States as a matter of comity.— There have been several instances in which fugitives have been delivered to the United States in the absence of treaties as a matter of comity. Tweed, after his arrest in Cuba, and before the conclusion of a treaty between the United States and Spain, was delivered to the United States, but Mr. Fish, Secretary of State, declared: "The United States has from time to time carefully avoided making requests for the surrender of criminals for the reason, among others, that it might not be possible to reciprocate in such a matter. The government of Spain, in its

who are offenders against the human race; and it is believed that if in any case the comity could with propriety be practiced, the one which is understood to have called forth the resolution furnished a just occasion for its exercise.'' Dep. Cor. 1864, pt. 2, pp. 60, 71; pt. 4, p. 35.

Mr. Chief Justice Fuller in Terlinden v. Ames, 184 U. S. 270, 289, 22

Sup. Ct. Rep. 484, 46 L. ed. 534, 545, citing Holmes v. Jennison, 14 Pet. 569, 10 L. ed. 593. See, also, Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. Rep. 195, 46 L. ed. 264.

Terlinden v. Ames, supra.

In Fong Yue Ting v. United States, 149 U. S. 698, 709, 13 Sup. Ct. Rep. 1016, 1020, 37 L. ed. 905.

11

action in this case, has appreciated the peculiarity of the case."9 Mr. Clay, in 1827, applied to the British government for the extradition of a bank-teller charged with robbery.10 The British government was reminded of the application made by the British Minister to the United States in 1825 for the extradition of one Neilson, charged with forgery in Scotland, which application was favorably recommended to the governor of New York.11 In 1828 the United States requested from Mexico the extradition of persons of the name of Harden, who, it was charged, had committed a series of murders in Tennessee, and who had fled to Texas and taken refuge there. In accordance with this request, the Mexican government directed that the government of the state of Coahuila and Texas should arrest and surrender the fugitives. The Secretary of War of the United States was requested to detail a part of the military force on the border to assist the agent of the state of Tennessee in taking the fugitives to that state.12

301. No power to reciprocate.-It may be stated that it is now the settled policy of the United States not to request extradition except pursuant to treaty stipulations, and hence extradition should not be asked as an act of comity merely.13 Mr. Bayard, in a report to the President, declared: "During the past thirty years this government has repeatedly refused to make a request for extradition in the absence of a treaty, and several notable surrenders of fugitive criminals to the United States, among which may be instanced that of Tweed, have been made without any request on the part of this government. But

'November 3, 1876, MS. Inst. Spain, XVIII, 17.

19 He said in his note to Mr. Tudor, chargé d'affaires: "The application which you are thus instructed to make to the British government is not founded upon strict right, that government being under no obligation by any existing treaty or by the public law to surrender the fugitive. It addresses itself solely to the courtesy and discretion of that gov ernment, to its sense of justice, and to the interest common to all nations

that notorious offenders should not escape with impunity." Mr. Clay, Secretary of State, to Mr. Tudor, November 23, 1827, MS. Inst. U. S. Ministers, XII, 44.

"Governor Clinton, of New York, stated that no sufficient proof had been presented to justify the surrender of Neilson. Governor Clinton to Mr. Clay, December 19, 1825, MS. Misc. Let.

12 22 MS. Dom. Let. 275; Am. State Papers For. Rel., VI, 611.

13 Cushing, 6 Op. Atty. Gen. 85.

where a treaty of extradition exists, it is believed that the action of the executive branch of the Government has uniformly been guided by the principle that the expression of one thing is the exclusion of another. An agreement between two nations to comply with demands for extradition for certain enumerated offenses implies that surrender will neither be granted nor asked for others not enumerated." 14

§ 302. Escape effected by means of foreign vessel.—It is not a ground for demanding the return of a fugitive that his escape was effected by foreigners by means of a foreign vessel,15 as it is probable that the majority of fugitives from justice take this means of escape, nor would the fact that the foreign vessel was a man-of-war make any difference.

§ 303. Asking extradition as a favor.-In 1900 a request was made by the governor of Porto Rico that the United States should demand the extradition from Spain of an individual charged with murder, but Mr. Hay, Secretary of State, declined to comply, because no extradition treaty between the United States and Spain existed, and the United States could not, in the absence of a treaty, surrender under similar circumstances a fugitive from justice.16 The Mexican law does not permit extradition where

14 In the case of William J. McGarigle, September 14, 1887, 17 MS. Book, 13.

15 Mr. Bayard, in his report to the President in the case of McGarigle, September 14, 1887, 17 MS. Rept. Book, 13, said: "The ownership of a vessel, or of the vehicle in which a fugitive criminal escapes, does not appear to have any bearing upon the question of extradition. It is probable that a majority of the fugitive criminals from the United States, who in recent years have found refuge beyond the seas, have escaped on foreign-owned vessels; but this is not known ever to have been made a ground for asking the extradition of a fugitive. Even if the vessel in which the criminal flees should be a foreign man-of-war-a national ves

sel-this is not regarded as a valid ground for claiming a surrender. On the contrary, this Department, in 1872, as appears by its records, in the case of two seamen of the U. S. S. 'Wachusett,' who were charged with having committed larceny in the city of Leghorn and had escaped to that vessel, approved the action of the commanding officer of the European fleet, in refusing to comply with the request of the Italian authorities for the surrender of the men, the offense with which they were charged not being included in the extradition treaty between the United States and Italy."

16 Mr. Hay to the Governor of Porto Rico, June 19, 1900, 245 MS. Dom. Let. 649.

no treaty exists, unless the government seeking it shall promise strict reciprocity. Owing to the inability of the United States to grant extradition in the absence of treaty stipulations, this government does not occupy a position authorizing it to request the surrender of a fugitive by the Mexican government in a case not embraced by the treaty."

Where it was sought to have the United States request extradition from Chile, Mr. Hill, Acting Secretary of State, replied: "It has been deemed impolitic to ask of foreign governments a favor which the government could not grant. This policy has been maintained with few exceptions for a long period of time, and the Secretary of State has directed that it shall be observed in the present case.