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that extradition need not be given for offenses not specified in the treaty, but the meaning of the offense named in a treaty will be determined by the law of the country where it was committed.27
(2) Constitutional guarantees require that “due process of law” be given to persons in the territory of the United States before extradition. This necessity is satisfied if evidence sufficient to warrant commitment for trial in the United States28 or to indicate probable guilta' is forthcoming, even though the party is to be extradited to foreign territory under military occupancy of the United States, where the usual forms of trial guaranteed to inhabitants of the United States may not be had.30 Many countries refuse to extradite their citizens, and a number of treaties to which the United States is a party specifically exempt them, but the United States does not recognize this exemption in the absence of specific treaty provision.31
(3) The actual surrender of the accused is an executive act and is performed by the president through the secretary of state, except in certain treaties with Mexico,32 in which the state authorities along the frontier are given power to surrender accused persons within their jurisdiction. The treaties themselves furnish sufficient authority for the exercise of this power,33 but it can not be exercised until the evidence has been heard and certification given by the proper judicial authority.34 It seems that even after such certification the president's power is not merely administrative. He may in his discretion refuse to surrender a
Prisoners, 1 Wood and M. 66; (U. S. C. C., 1845) U. S. vs. Watts, 14 Fed. Rep. 130; U. S. vs. Rauscher, 119 U. S. 407; Moore's Digest, 4;270-273. U. S. vs. Robbins, Bees Admr, 266; Matter of Metzger, 5 How. 176, (1847). See E. S. Corwin, National Supremacy, N. Y., 1913, p. 277 et. seq.
27This is frequently required by the terms of the treaty. See Benson vs. McMahon, 127 U. S. 457, 466, (1880); In re Farez, 7 Blatch. 345, Moore's Digest, 4;273-278.
28Nelson Att. Gen., 4 op. 201, (1843); Moore's Digest, 4;388-391. 29In re Ezeta, 62 Fed. Rep. 972.
30 Act. June 6, 1900, 31 Stat. 656, providing for extradition to territory under military government, and Neeley vs. Henkel, 180 U. S. 109, (1901), upholding the statute, Moore's Digest, 4;287-306.
31 Neeley vs. kel, 180 U. S. 109, (1901); Moore's Digest, 4;287-306. 32Treaty with Mexico, 1861, art. 2, Malloy, p. 1126.
33Terlinden vs. Ames, 184 U. S. 270, 289, (1902); Moore's Digest, 4;397-399.
34Cushing, Att. Gen., 6 op. 217, (1853); Nelson, Att. Gen., 4 op. 240, (1843).
person found liable by the courts.35 The ultimate fulfillment of the duty of extradition is therefore a political rather than a legal one according to the law of the United States. Municipal law can not compel the president to deliver criminals, although after action by the courts it is undoubtedly his duty to do so, except in extraordinary cases.
RETURN OF DESERTING SEAMEN The return of deserting seamen to their vessels is a matter resembling extradition. As in that case, international law imposes no duty in the absence of treaty,36 but the United States has assumed the obligation in a number of treaties, 37 and statutes38 have provided that deserting seamen may be seized on application of the consul of a foreign government having an appropriate treaty with the United States, and on proof of desertion be delivered up to the consul. It has been held that seamen consigned to vessels being built for a foreign government and still in dry dock are within the meaning of these treaties and statutes.30
At the present time, international law imposes no duties of vindication on states in time of peace, although it requires them to observe treaties and international conventions, imposing new duties of this character upon them. The rapid multiplication of these treaties in recent times and the almost universal acceptance of the principles of some of them indicate that, in certain fields, cooperation and mutual aid have become recognized as essential to the life of civilized nations, and while states may not yet be under a legal obligation to accede to such treaties or the principles they embody, international comity certainly imposes a moral obligation which cannot be long neglected. The rules of municipal law enforcing these moral obligations of cooperation in humanitarian and industrial matters and mutual aid in the suppression of crime are therefore closely related in international importance to like measures enforcing positive legal obligations of international law. The accession to treaties of this kind is a purely political matter and beyond the control of municipal law, but the usual measures for enforcing treaties in the United States apply when once they are concluded.
35 See Moore's Digest, 4;399-400.
36Tucker vs. Alexandroff, 183 U. S. 424, 431, 467-469; Cushing Att. Gen. 6 op. 148, 209; Moore on Extradition, sec. 408; Moore's Digest, 4;417-420.
37This provision has been contained in fifty-two treaties with thirtyfive countries.
38 Rev. Stat., 5280; on procedure, see Rev. Stat. sec. 4079-4081.
CHAPTER VI. OBLIGATIONS OF REPARATION
Reparation is a duty owed by a state in case of a failure to observe any of its obligations under international law. If it commits any forbidden acts itself, or fails to prevent its subjects from doing so, it must make amends to the injured state or its subjects. This applies to violations of the duties of states when neutral or belligerent, as well as in time of peace. To enumerate the occasions on which reparation is due would, therefore, be to recapitulate practically the whole of this paper. It is not the purpose of this chapter to discuss the occasions upon which the United States has given reparation, but rather to consider the general laws by which the duty to make reparation is enforced.
Like all obligations of international law, reparation is primarily a duty of states. No matter who the perpetrator of the wrong, whether a private person or a diplomatic officer, if it is a breach of international law the state will be held liable. Viewed from this standpoint, reparation is beyond the control of municipal law. As an obligation upon the sovereign power, municipal law can lend no effective sanction, although it can, by proper constitutional agreements, insure a distinct recognition, both national and international, of the authority which is to be considered the responsible agent of sovereignty in this respect, and can furnish a machinery whereby the demands required by a just observance of the duty of reparation may be made known.
Furthermore, although the state is ultimately held responsible, material reparation may often be had more expeditiously by direct recourse to the private person, officer or department of government immediately at fault. Municipal law may enforce the duty of such persons and departments to make reparation.
It is true that the municipal enforcement of the duty to make indemnity incumbent upon the immediate perpetrators of the wrong is often used as a basis for denying the duty of reparation" altogether, using the term to signify solely an idemnification by the government of the state at fault. This view is be
1See especially Secretary of State Evarts and Secretary of State Bayard, official correspondence on Chinese outrages, 1880-1885, Moore's Digest, 6;820-835.
lieved to be untenable. If a breach of international law has been
a committed, the state through its recognized government is responsible, no matter what advantages of recourse to the immediate party at fault its municipal law may give. The duty of the government to make reparation can only be escaped by proof that the tort was not one of international law. If it is admitted that international law requires a state to give reasonable protection to aliens in its territory, then an injury to such aliens by mob violence implies an obligation of reparation and indemnity by the government, no matter what remedies from the immediate perpetrators, through courts of justice, municipal law may permit. Escape from the obligation of the government can only be based on a denial of the statement that international law imposes such an obligation of prevention.
But although the state can not escape the obligation to make reparation for breaches of international law, through its government, this does not prevent it providing other means by which the injured party may obtain reparation, through municipal law. Such municipal remedies may be more rapid and satisfactory to all parties concerned than recourse to the government through diplomatic channels. If satisfaction is obtained from the person or officer guilty the state's duty of reparation is fulfilled, and to its fulfillment in this manner municipal law may lend a sanction. The question may therefore be treated under two heads, (1) reparation by the national government, (2) reparation by inferior governmental divisions, public officers and private persons.
REPARATION BY THE NATIONAL GOVERNMENT Under the constitution, exclusive control of foreign relations is in the hands of the national government of the United States. In this field it is sovereign. The municipal law of the United States can not compel it to observe its duties of reparation. On numerous occasions the duty has been recognized, through the voting of indemnities by congress, the authorization of salutes to a foreign flag or public apology, but it has been done as a matter of policy, comity, foreign pressure or sense of international obligation, not from any coercion of municipal law.
Although the duty of the national government to make reparation can not be compelled by municipal law, the probability of the duty being performed will be greatly increased if municipal law (1) places no obstacles in the way of such performance, and (2) establishes a machinery for the determination and set
tlement of claims for reparation. Municipal law may thus be of great importance in the fulfillment of this international duty.
(1) The obstacles if any which the constitutional system of the United States places in the way of an adequate performance of the duties of reparation will be considered according to the character of those duties. Reparation may take the form of (a) apology, or salute of a foreign flag, (b) cession of territory, (c) pecuniary indemnity, (d) punishment or surrender of offenders, or (e) release of persons held in custody in contravention of international law.
(a) Such formal modes of reparation as apology and salute of the flag are entirely executive in nature. The president through his control of foreign relations exercises unrestrained discretion in these matters.?
(b) Reparation by cession of territory generally results from war. The United States demanded such indemnity, although it can scarcely be called reparation, in the Mexican and Spanish wars, but it has never made cessions for this reason itself. The power to cede territory is generally agreed to be inherent in the treaty power, consequently, if necessary, reparation of this character could be made by the president with the advice and consent of two-thirds of the senate.?
(c) Pecuniary indemnity is the most common form of reparation, and it clearly cannot be made without the express consent of congress. Congress by the constitution has control of the purse, and consequently no indemnity can be paid without an appropriation by it, although lump appropriations for the general purpose of settling claims might be voted, to be expended at
?For reparation by apology see The Trent Affair. No formal apology was made, but Great Britain recognized the return of Mason and Slidell and Secretary of State Seward's note as equivalent to the apology demanded. Moore's Digest, 7;771. For reparation by salute of fag see case of French Consul subpoenaed in San Francisco, Moore's Digest, 5;80; case of The Florida seized in Brazilian territorial waters, Moore's Digest, 7;1091; Case of Spanish consulate attacked at New Orleans, Moore's Digest, 6;813.
3 Lattimer vs. Poteet, 14 Pet. 14. There has been dicta to the effect that the consent of a state is necessary before any of its territory may be ceded. See Geofroy vs. Riggs, 133 U. S. 267; Insular cases, 182 U. S. 345, though in this case the court admitted that territory of a state might be ceded to buy peace after a disastrous war without such consent. See Butler, Treaty Making Power, 1;411-413; 2;238, 287-294; Moore's Digest, 5;171-175.