Extradition. The term extradition is applied to the legal process by which one sovereign state, in compliance with a formal demand, surrenders to another state, for trial, the person of a criminal who has sought refuge within its territory.' the Netherlands, Norway, Russia, Sweden, Greece, Brazil, Spain, Switzerland; (b) not punished by Denmark, Great Britain, Portugal. "(2) Counterfeiting seals of the state, national moneys having circulation, national papers or bank bills authorized by law; (a) Punished by France, Germany, Austria, Belgium, Hungary, Italy, Luxembourg, the Netherlands, Norway, Sweden, Greece, Brazil, Spain, Switzerland; (b) Not punished by Denmark, Great Britain, Portugal. "(3) Other offences: (a) General jurisdiction of offences committed abroad, by foreigners against subjects, is claimed by Greece and Russia; (b) Such offences are punished by Sweden and Norway, if the King orders the prosecution; (c) Crimes, but not delits, committed by foreigners in another state are punished by Austria, provided that (except in the case of crimes, specified under 1 and 2), an offer of surrender of the accused person has first been made to the state in which the crime has been committed, and has been refused by it; (d) criminal offences committed abroad by foreigners are punished by Hungary, if the minister of justice orders the prosecution, provided the act is punishable at the place of commission, that it has not ceased to be punishable there, and that the competent authority does not undertake to punish it; (e) criminal offences, committed by foreigners, against Italians in another state, are punished by Italy, but only when (except in the cases under 1 and 2) an offer of surrender of the person accused has been made to the state in which the crime was committed, and has been refused by it, unless the crime was committed within three miles of the frontier, or stolen property has been brought into the kingdom; (f) non-bailable offences, committed abroad by foreigners, are punished by Brazil, if the prosecution is authorized by the government, and the laws of the criminal's country punish foreigners in like cases; (g) criminal offences, committed outside of the state, by foreigners against citizens or subjects, are not punished, under any conditions, by France, Germany, Belgium, Denmark, Great Britain, Luxembourg, the Netherlands, Portugal, Spain, or Switzerland."a I Moore on Extradition, § 1; Spear, Ibid. pp. 70, 71; Heffter, § 63; Klüber, § 66; Bluntschli, §§ 394-401; Lawrence, Int. Law, § 132; Pomeroy, § 198; Vattel, liv. ii. chap. vi. §§ 75-77; Dana's Wheaton, § 181, note 73; Walker, Science of Int. Law, pp. 232-238. a Foreign Relations of the United States, 1887, pp. 757-867. In the case of the United States vs. Arjona, decided by the Supreme Court in 1886, it was held that the counterfeiting of foreign securities, whether national or corporate, which have been put out under the sanction of public authority at home, especially the counterfeiting of bank notes and bank bills, is an offence against the law of nations; and that, consequently, the Congress of the United tional power to provide for the punishStates has authority, under its constitument of offences against the laws of nations, to enact laws to punish the foreign counterfeiting of foreign securities in the United States.-United States vs. Arjona, 120 U. S. 479. Methods of Extradition. Extradition may be effected in three ways: Ist. By treaty; 2d. In accordance with authority conferred by municipal law; 3d. By comity. Few extradition treaties were in existence at the beginning of this century, and most of those now in force have been negotiated within the last thirty years. Their number is steadily increasing, and the present tendency is to regulate the surrendry of criminals exclusively in accordance with their stipulations. These treaties are usually construed with great strictness; the list of criminal offences contained in the body of the treaty is rigidly adhered to, and requests for the extradition of persons charged with crimes not mentioned in such lists are almost invariably refused.' Extraditable Offences. The crimes for which extradition may be requested are those as to which there is a concurrence of opinion among all civilized states as to definition and punishment, and, also, as to the kind and amount of evidence necessary to secure a conviction. Wherever that course seems necessary, they are accurately defined in treaties. Those common to most extradition treaties are, arson, assaults of an aggravated character, burglary, counterfeiting, embezzlement (either of public money, by public officers, or by persons hired or salaried), forgery, larceny, murder, piracy, rape, and robbery. Request for Extradition, by whom Made. In general the request for extradition, and the consequent surrender, are acts of high sovereign authority, and are made in the formal diplomatic way. In the extradition treaty between the United ' For a general discussion of the subject, see vol. xvii. Revue de Droit Int. p. 375; xix. Ibid. p. 545; xx. Ibid. pp. 36, 54; Hall, § 13, pp. 59-61; Bar, §§ 147-153; I Phillimore, §§ 371-389. 2 To justify the commencement of process in extradition, it must appear that the criminal acts charged were committed within the territorial jurisdiction of the demanding government.-David's case, VIII Opinions of Attorney General, p. 215. Cushing (1856). All demands of international extradition must emanate from the supreme political authority of the demanding state.-VII Opinions of Attorney-General, p. 6. There can be no actual extradition without proper requisition to that effect, addressed by the foreign government to the Secretary of State. VIII Ibid. p. 240. A foreign mandat d'arrêt, setting forth the offence of a fugitive from the jus States and Mexico, however, requests for extradition may be made by the governors, or other civil authorities, of the frontier states, or, in case the civil authority is suspended, then through the military officer in chief command of such state or territory. Conditions of Extradition. The following provisions are included in most treaties and statutes on the subject of extradition: (a.) The more serious crimes only, amounting to felony at common law, are extraditable. (b.) Those crimes only are extraditable as to which there is a general agreement, among civilized states, in the matter of definition, proof, and punishment. tice of a foreign country, within the terms of any treaty of extradition, such mandat, coming through the proper political channel, is sufficient foundation for the issue of the President's warrant authorizing the institution of proceedings before the judicial authorities of the United States.-Sucillon's case, VII Ibid. p. 285, Cushing (1855), A mere notification by the local officer of a foreign government of the escape of an alleged criminal is not sufficient prima facie evidence of a case to justify the preliminary action of the President. Maria Theresa Gerk's case, VII Ibid. p. 6, Cushing (1854). Any competent magistrate may take jurisdiction of a question of international extradition voluntarily; that is, without the previous application of the foreign government, or issue of the preparatory letters permissive of the President. -Wetherwax's case, VIII Ibid. p. 240, Cushing (1856). A commissioner for the United States, appointed by the circuit court, is a magistrate within the meaning of the law and of the treaty of Washington, and as such has power to apprehend, examine, and certify as to fugitives from justice.-IV Ibid. p. 201. A requisition for a fugitive is not necessary to a preliminary examination upon which the evidence of criminality is to be heard and considered, but with a view only to the surrender, after the ascertainment of the facts showing the party charged to be in a condition which justifies the apprehension and commitment for trial according to the laws of the place where he or she shall be found.Ibid. The mode of procedure in such cases is the preferment of a complaint to a judge or magistrate, setting out the offence charged on oath, whereupon the judge or magistrate may issue a warrant for the apprehension of the person accused. Upon the accused being brought before the judge or magistrate, the latter should hear and consider the evidence of criminality; and if on such hearing the evidence be deemed sufficient to sustain the charge, the same should be certified to the executive authority, that a warrant may issue for the surrender.—Ibid. (c.) The sufficiency of evidence as to the crime for which extradition is asked is determined, in a majority of cases, by the law of the state in which the criminal has taken refuge.' (d.) A state, before giving effect to a request for extradition, will punish the criminal for any offence which he may have committed against its own municipal laws. (e.) Most states will surrender a criminal only with the understanding that he is to be tried for the crime mentioned in the request for extradition, and for no other.' (f.) Many states, for a reason already given, decline to sur In re Ezeta, 62 Fed. Rep. p. A fugitive from the justice of Great Britain, charged with the 972. commission of the crime of murder in Scotland, apprehended in the United States, and examined before a commissioner, and by him certified to be probably guilty on the evidence adduced, should be delivered up to justice, if the evidence upon which the application is founded be such as, according to the laws of the place where the fugitive shall be found, would justify his or her apprehension and commitment for trial if the crime had there been committed. Christiana Cochrane's case, IV Opinions of Attorney-General, p. 201, Nelson (1843). 2 This was resolved by the Institute of International Law at its Oxford meeting in 1880. The United States Supreme Court upheld the same principle in Rauscher's case (119 U. S. 407, Dec. 6, 1886), which arose under the treaty of August 9, 1842, with Great Britain and the supplementary acts of Congress of August 12, 1848, and March 3, 1869; the treaty, the acts of Congress, and the proceedings by which he was extradited, clothe him with the right to exemption from trial for any other offence until he has had an opportunity to return to the country from which he was taken. The national honor also requires that good faith shall be kept with the country which surrendered him. This is the prevalent rule (v. Liszt, Völkerrecht, "33.5 Das Auslieferungsverfahren"). In the leading case of Wright vs. Henkel, decided by the U. S. Supreme Court June 1, 1903 (190 U. S., 40-), it was held that "The general principle of international law in cases of extradition is that the act on account of which extradition is demanded must be a crime in both countries. As to the offence charged in the case, this applicable treaty embodies that principle in terms by requiring it to be made criminal by the laws of both countries. If the offence charged is criminal by the laws of the demanding country and by the laws of the State of the United States in which the alleged fugitive is found, it comes within the treaty and is extraditable." (Referring to the treaties with Great Britain, August 9, 1842, and July 12, 1889. render their own citizens, or subjects; the United States has recognized a contrary rule.1 (g.) Most states refuse to surrender person charged with political crimes.2 (h.) Due regard being had to differences between codes of criminal law and procedure, crimes can best be tried and punished at the place where they were committed. Extradition Treaties of the United States. The United States has thus far negotiated over fifty extradition treaties.3 The first was entered into in 1794, and is comprised in Article 27 of Jay's Treaty with England. It included the crimes of murder and forgery only, and contained no stipulation as to the manner in which persons, charged with either of these crimes, were to be extradited. No legislation was had by Congress for the purpose of carrying that part of the treaty into effect, and, as it was not self-executing, it was held to be legally inoperative, and expired by limitation in 1806.4 1 Charlton vs. Kelly, 229 U. S. 447 (June 10, 1913). 2 Emigrants and exiles for cause of political difference at home are entitled to asylum in this country, but not malefactors; on the contrary, theforeign government which reclaims its fugitive malefactors is serviceable to us by ridding us of the intrusive presence of crime.Sucillon's case, VII Opinions of Attorney-General, p. 536, Cushing (1855); vol xxix. Revue de Droit Int. pp. 5-16; xxiv. Ibid. pp. 1739; xiv. Ibid. pp. 403, 475. namely, the punishment of malefactors, who are the common enemies of all society.-VII Opinions of Attorney-General, p. 536. Thomas Nash, alias Robins, was charged with having committed murder on board the Hermione, a British war vessel, on the high seas; requisition was made by the British minister for the delivery of the offender under the twentyseventh article of the treaty of 1794. The district judge of South Carolina, before whom the prisoner was brought by habeas corpus, 3 When reclamation of a fugitive made an order, as is stated, at the from justice is made under treaty particular request of the President stipulation by any foreign govern- of the United States, that, as there ment, it is the duty of the United was sufficient evidence of criminalStates to aid in relieving the case ity to justify the apprehension and of any technical difficulties which commitment for trial of the prismay be interposed to defeat the oner, he be delivered over by the ends of public justice, the object marshal of the court to the British to be accomplished being alike consul under the twenty-seventh interesting to both governments- article of the treaty-Bee's Adm. |