Section I. NATURE OF THE OBLIGATION.

II. BY WHOM THE SURRENDER IS TO BE MADE.

III. BY WHAT AGENCY THE SURRENDER IS TO BE MADE.

SECTION I.

NATURE OF THE OBLIGATION.

THE duty of extradition of fugatives from justice from foreign states, as understood in America, supposes a reciprocity of obligation founded upon an express agreement between sovereign powers.

"In the year 1791, the governor of South Carolina made a request that the President of the United States should demand of the governor of Florida certain persons who had committed crimes in South Carolina, and fled to Florida. Mr. Jefferson, the Secretary of State, in his report to President Washington, says: 'England has no convention with any nation for the surrender of fugitives from *justice, and their laws have given [576

no power to their executive to surrender fugitives of any description, they are accordingly constantly refused; and hence England has been the asylum of the Paolis, the La Mottes, the Calonnis; in short, of the most atrocious offenders, as well as the most innocent victims, who have been able to get there. The laws of the United States, like those of England, receive every fugitive; and no authority has been given to our executives to deliver them up. If, then, the United States could not deliver up to General Quesnada (governor of Florida), a fugitive from the laws of his country, we cannot claim as a right the delivery of fugitives from us.'"

In the year 1793, Mr. Jefferson answered an application of Mr. Genet, the French minister, in the following

terms:

"The laws of this country take no notice of crimes committed out of their jurisdiction. The most atrocious offender coming within their pale, is received by them as an innocent man; and they have authorized no one to seize and deliver him. The evil of protecting malefactors of every dye is sensibly felt here, as in other countries, but until a reformation of the criminal codes of most nations, to deliver fugitives from them, would be to become their accomplices. The former is viewed, therefore, as the lesser evil."

Mr. Monroe, as Secretary of State under President Madison, in his instructions to our commissioners at Ghent, said: "Offenders, even conspirators, cannot be pursued by one power into the territory of another, nor are they delivered up by the latter, except in compliance with treaties, or by favor."

The treaty of 1794, between the United States and Great 577] Britain having expired, the former *maintained the same views which had been advanced before the treaty was made.

"In March, 1825, the governor of Vermont forwarded to Mr. Clay, the Secretary of State of the United States,

a communication addressed to him by the acting governor of Canada,' stating that two soldiers of a British regiment, who had committed a robbery on two officers of the regiment, were then in confinement in jail in Burlington, Vermont, and asked that the offenders should be delivered up to a person to be authorized to receive them, to be brought to justice in the province of Canada. The governor of Vermont, in the letter to the Secretary of State expresses his readiness to attend to any directions the Secretary of State of the United States might please to give on the subject.

"The reply of Mr. Clay, which was transmitted by Governor Van Ness to the acting governor of Canada, states: 'I am instructed by the President to express his regret to your excellency, that the request of the acting governor of Canada cannot be complied with under any authority now vested in the executive government of the United States; the stipulation between this and the British government, for the mutual delivery of fugitives from justice, being no longer in force; and the renewal of it by treaty being, at this time, a subject of negotiation between the two governments.'"

Other instances have occurred in which the government has maintained the same views.'

The subject has in a few cases been brought under consideration in the courts. In 1819 Chancellor Kent in a learned and elaborate opinion in the Matter of Washburn,' maintained that independent of any treaty stipulations, "it is the law *and usage of nations, resting [578 on the plainest principles of justice and public utility, to deliver up offenders charged with felony and other high crimes, and fleeing from the country in which the crime was committed into a foreign and friendly

jurisdiction."

But this opinion has been followed in no other state. On the contrary it has been rejected in several. In 1823

1 Story Confl. Laws, § 628, note.

2

4 John. C. R. 108.

the question was considered by the Supreme Court of Pennsylvania, in the case of The Commonwealth v. Deacon,' and an opinion pronounced by Ch. J. Tilghman, distinguished for research and ability, in which he upholds the doctrine advanced by the American government, and concludes: "that no state has an absolute and perfect right to demand of another the delivery of a fugitive criminal, though it has what is called an imperfect right, that is a right to ask it as a matter of courtesy, good-will and mutual convenience. In 1822,

Ch. J. Parker of Massachusetts, in the case of The Commonwealth v. Green,' recognizes the same doctrine, observing that in respect to the several states of the Union: "The Constitution has made that obligatory between the states, which between nations entirely foreign to each other was done from comity." In 1837, in the case of U. S. v. Davis,' on the acquittal of the defendant, on the ground that jurisdiction over the offence belonged to a foreign government, it was suggested by the district judge, that the court should remand the prisoner to the foreign government for trial. But Mr. Justice Story said:

"He had never known any such authority exercised by our courts, except where the case was provided for 579] by the stipulations of some treaty. He had great doubts whether upon principles of international law, and independent of any statutable provisions or treaty stipulation, any court of justice was either bound in duty or authorized in its discretion to send back any offender to a foreign government whose laws he was supposed to have violated."

The prisoner was thereupon discharged.

See also the case of Jose Ferreira de Santos, Commonwealth v. De Longchamps.*

1 10 S. & R. 125.

32 Sumner, 482.

917 Mass. 547.

4 2 Brock R. 493.

5 1 Dall. 111. In 1 Bishop's Criminal Law, 4th ed., sec. 103, it is said: "But whether on general principles of international law we should in any case

SECTION II.

BY WHOM THE SURRENDER IS TO BE MADE.

The duty of surrendering the fugitive arising only from treaty stipulations, its performance is supposed to appertain to the executive department of our government which, "by and with the advice and consent of the Senate," constitutes the treaty making power.'

It has been thought that the several states were not exempt from this duty, and some of them have at different times made provisions by statute for discharging it. It was the subject of statutory regulation in Virginia, as early as 1784.' In New York also, the governor was authorized by statute, in his discretion to surrender fugitives from foreign countries, but the governor in 1839, refused to act under it, upon the ground that the national government had exclusive jurisdiction over the subject; and such appears to have been the opinion of the Supreme Court of the United States the next [580 year, 1840, as expressed in the case of Holmes v. Jennison and others. For although no judgment was given in the case, a majority of the court concurred in the opinion. that the governor of Vermont had not the power to deliver up to a foreign government a person charged with having committed a crime in the territory of that government.

The Supreme Court of Vermont having before re

make the surrender, is uncertain; the doctrine of our tribunals, established after some conflict of opinion, seems to be that we should not." See also Wheaton's International Law, 6th ed.; Commonwealth v. Deacon, 10 S. & R. 125; Ex parte Holmes, 12 Vt. 631.

1 Sergt. Const. Law, 408; 1 Curtis' Comm. 96.

11 Hen. Stat. p. 471, ch. 24, cited in 1 Rob. Pr. 7. 3 14 Peters, 540.