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tion of Article III of the treaty of 1890, that an extradited criminal may not properly be tried for an offense not named in the warrant of extradition. Under the language of the treaty of 1842, which contained no such affirmative restriction, and under sections 5270, 5272, 5275, Revised Statutes, it was determined by a majority of the Supreme Court, after careful consideration, Mr. Justice Miller delivering the opinion of the court:

"That the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings." (United States v. Rauscher, 119 U. S., 407, 430; and see also Moore on Extradition, vol. 1, pp. 254, 272.)

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Mr. Justice Gray's concurring opinion (119 U. S., p. 433) applies aptly to the present case, because the "affirmative restriction in the treaty" upon which the learned justice's concurrence was based manifestly exists in this case. Mr. Chief Justice Waite's dissenting opinion states the opposed view, namely, that a fugitive from justice has no absolute right of asylum, "and if he can be got back within the jurisdiction * whose laws he has violated, he may be proceeded with precisely the same as if he had not fled, unless there is something in the way in which he was got back to prevent." Chief Justice Waite finds nothing in the treaty of 1842 with Great Britain which says anything about what shall be done with [surrendered criminals] after the delivery has been made. It might have provided that they should not be tried for any other offenses than those for which they were surrendered, but it has not." So that the only ground of dissent in the case of Rauscher, namely, the silence of the treaty upon this particular point, is absent from the present case, for the treaty is express upon that point.

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It is hardly, therefore, worth while to point out that the criminal in this case is a citizen of the United States and not a subject of Great Britain, and that the crime of robbery for which he was tried and convicted, like the crime of murder, for which he was extradited, is an extraditable crime under the tenth article of the treaty of 1842; in both of which respects the case differs from the case of Cosgrove v. Winney, 174 U. S., 64. Nevertheless, and notwithstanding the crucial fact that Underwood appears to have been retained in custody by the authorities of Texas after he had been acquitted of the offense for which he was extradited, and was not given an opportunity to leave the country before his trial and conviction of the offenses for which he is now suffering imprisonment, I am unable in the existing circumstances to concur in the view of the British ambassador that the matter at the present stage is one of international obligation, and that the remedy which His Majesty's Government appears to have against the technical violation of this international obligation seems to exist regardless of any action which the prisoner might take on his own behalf.

The question at issue is judicial in its nature. It respects the legal rights of the prisoner under the extradition treaty, which is part of the law of the land. It may be duly raised now in the State courts or in the Federal courts upon writ of habeas corpus. The prisoner does not seem to have interposed this defense at any stage of his trial or on appeal (although he was fully competent and entitled to do so), and since his sentence took effect he does not appear to have made any application whatever for the writ of habeas corpus in order to test the question. This Department, recognizing the propriety of the considerations of international comity disclosed by the case, will facilitate in every proper way the judicial settlement of the question, and to that end will acquiesce in the issuance of a writ of habeas corpus on behalf of the prisoner, if it shall be deemed advisable by him or by those interested in his case, to apply for the same to a Federal court. And, further, so far as it may be proper to do so, I shall, by suggestion or recommendation, move the State authorities to pursue the same course in case such an application for habeas corpus should be made to a

State and not to a Federal court. Even if in the abstract the full extent and effect of the view of His Majesty's Government could be admitted, I am aware of no means by which, without the judicial proceedings, the prisoner could be released and withdrawn from the custody of the State of Texas.

I may add that the views which I have just expressed are founded upon the opinion in United States v. Rauscher, supra, pages 430-431, namely:

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"In Great Britain the control of such matters would undoubtedly be recognized by any court to be in the Crown, but in this country such a proposition is, to say the least, not unaccompanied by serious embarrassments. The principle we have here laid down removes this difficulty, for under the doctrine that the treaty is the supreme law of the land, and is to be observed by all the courts, State and national, 'anything in the laws of the States to the contrary notwithstanding,' if the State court should fail to give due effect to the rights of the party under the treaty, a remedy is found in the judicial branch of the Federal Government, which has been fully recognized. If the party, however, is under arrest and desires a more speedy remedy, in order to secure his release, a writ of habeas corpus from one of the Federal judges or Federal courts bring him before a Federal tribunal, well founded, he will be discharged. also could issue such a writ, and thus the judicial remedy is complete, when the jurisdiction of the courts is admitted. This is a complete answer to the proposition that the rights. of persons extradited under the treaty can not be enforced by the judicial branch of the Government, and that they can only appeal to the executive branches of the treaty governments for redress."

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and if it be State courts

I have the honor, therefore, to advise you that I know of no steps appropriate to be taken by the Executive in order to fulfill in the case of Underwood the obligations of the treaty in question, except through the judicial proceedings which I have herein suggested.

Very respectfully,

The SECRETARY OF STATE.

JOHN W. GRIGGS.

OPINIONS

OF

HON. PHILANDER C. KNOX, OF PENN

SYLVANIA.

APPOINTED APRIL 5, 1901.

MOUNT VERNON RELICS.

The Mount Vernon relics (so called) which were removed from Arlington by the military authorities of the United States in 1862 for safekeeping, and are now deposited in the Smithsonian Institution, are the private property of George Washington Custis Lee, they having passed to him under the will of his grandfather, George Washington Parke Custis, upon the death of his mother, Mary Ann Randolph Lee. The Government having taken possession of these articles solely for their safe-keeping, and never having acquired title to them, the President has the power to return them to their rightful owner. Their restoration now is quite as much within the scope of Executive authority as has been their preservation.

DEPARTMENT OF JUSTICE,
April 8, 1901.

SIR: About October, 1857, George Washington Parke Custis, a grandson of Mrs. Martha Custis, afterwards Martha Washington, died at Arlington, Virginia, leaving an only child and daughter, Mary Ann Randolph Lee, wife of Robert E. Lee, and several grandchildren. His will, executed March 26, 1855, contained, among other provisions, the following:

“I give and bequeath to my dearly beloved daughter and only child, Mary Ann Randolph Lee, my Arlington house estate, in the county of Alexandria, and State of Virginia, containing eleven hundred acres, more or less, and my mill on Four-mile Run, in the county of Alexandria. and the lands

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