the action of the Congress, following that of the state, as a practical construction of the treaty as permitting these works and justifying the charge."

The Court also held that it was reasonable to assume that the improvements in question on the Pigeon River constituted structures and uses which had been permitted by both the United States and Canada prior to the signing of the treaty of January 11, 1909,2 concerning boundary waters and questions arising along the boundary, and were so recognized by that treaty, as apparently no action has been taken by either Government or by the International Joint Commission established by the treaty, inconsistent with this view. The judgment of the Circuit Court of Appeals was reversed and the cause remanded for further proceedings.

2 Treaty Series, No. 548.

HUMANITARIAN

EXTRADITION

EXTRADITION TREATY BETWEEN THE UNITED STATES AND ALBANIA 1

On February 2, 1934, the Senate gave its advice and consent to the ratification by the President of the extradition treaty between the United States and Albania signed at Tirana March 1, 1933. The President ratified the treaty on February 21, 1934.

EXTRADITION TREATY BETWEEN THE UNITED STATES AND TURKEY

On February 5, 1934, the Senate gave its advice and consent to the ratification by the President of the extradition treaty between the United States and Turkey signed at Lausanne August 3, 1923. The treaty was ratified by the President on February 21, 1934.

CONVENTION AS TO BOUNDARIES, SUPPRESSION OF SLAVE TRADE, AND EXTRADITION BETWEEN THE UNITED STATES AND GREAT BRITAIN, AUGUST 9, 1842 2-SUPPLEMENTARY EXTRADITION CONVENTION OF JULY 12, 1889 3

DECISION OF THE SUPREME COURT OF THE UNITED STATES,

On complaint of the British Consul, a United States commissioner for the Northern District of Illinois issued his warrant to hold the petitioner, John Factor, in custody for extradition to England. under article X of the Webster-Ashburton Treaty of 1842, as supplemented by the Blaine-Pauncefote Convention of 1889, and duly certified the evidence in the proceeding before him to the Secretary of State. The application for extradition was based on a charge that the petitioner, at London, had "received from Broadstreet Press Limited" certain sums of money, "knowing the same to have been fraudulently obtained ".

Upon application by the petitioner for writ of habeas corpus, and certiorari in its aid, the District Court for Northern Illinois ordered him released from custody on the ground that the act charged was not embraced within the applicable treaties because not an offense under the laws of Illinois, the State in which he was apprehended and held. On appeal the Court of Appeals for the Seventh Circuit reversed the judgment of the District Court (61 F. (2d) 626), on the ground that the offense was a crime in Illinois, as had been declared in Kelly v. Griffin, 241 U.S. 6. Certiorari was granted by the Supreme Court, 289 U.S. 713, on a petition which presented as ground for the reversal of the Court of Appeals' judgment that under the treaty of 1842 and the convention of 1889, extradition may not be had unless the offense charged is a crime under the law of the State where the fugitive is found, and that "receiving money, knowing the same to have been fraudulently obtained ", the crime with which the petitioner was charged, is not an offense under the laws of Illinois.

The petitioner asserted that it is a general principle of international law that an offense for which extradition may be had must be a crime both in the demanding country and in the place where the fugitive is found; that the applicable treaty provisions, interpreted in the light of this principle, exclude any right of either country to demand the extradition of a fugitive unless the offense with which he is charged is a crime in the particular place of asylum; that the principles of international law recognize no right to extradition apart from treaty, and while a government may, if such action is agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he has fled, the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty; and that to determine the nature and extent of the right, one must look to the treaty which created it.

The question thus presented for determination by the Supreme Court was one of the construction of the provisions of the applicable treaties in accordance with the principles governing the interpretation of international agreements.

5

Article X of the treaty of 1842 with Great Britain provides that each of the two countries "shall . . . deliver up to Justice all per

5

The applicable provisions of the treaty of 1842 are as follows: "ARTICLE X. It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them or their Ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder. or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall

sons who, being charged with " certain specified crimes "committed within the jurisdiction of either, shall seek asylum, or shall be found within the territories of the other ". The crime charged against the petitioner is not among those specified in article X and, as pointed out by the Court, is therefore not an offense with respect to which extradition may be demanded unless made so by the provisions of the supplementary convention of 1889. The latter convention, expressing the desire of the high contracting parties that the provisions of article X of the earlier treaty should "embrace certain crimes not therein specified ", provides in article I that the provisions of article X of the earlier treaty shall be made applicable to an added schedule of crimes specified in ten numbered classes of offenses and one unnumbered class. In the case of those offenses enumerated in the class numbered 4, article X is stated to apply only if they are" made criminal by the laws of both countries". In the class numbered 10, article X applies only to "crimes and offenses against the laws of both countries". In the unnumbered class, relating to extradition for "participation" in crimes, article X is applicable where "such participation be punishable by the laws of both countries". No such limitations are expressed with respect to the crimes enumerated in the other eight classes, one of which, the third, includes the crime with which the petitioner was charged. Like article X of the earlier treaty, article I of the convention of 1889 names those offenses upon accusation of which the fugitive is to be surrendered and it extends to them the obligation of the earlier

be found, within the territories of the other: provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive."

*The applicable provisions of the convention of 1889 are as follows: "ARTICLE I. The provisions of the said Tenth Article are hereby made applicable to the following additional crimes:

"4. Fraud by a bailee, banker, agent, factor, trustee, or director or member or officer of any company, made criminal by the laws of both countries.

"Extradition is also to take place for participation in any of the crimes mentioned in this Convention or in the aforesaid Tenth Article, provided such participation be punishable by the laws of both countries."

treaty. The Court, however, directed attention to the fact that "Article I, unlike Article X, singles out for exceptional treatment certain of the offenses named, which in terms are brought within the cbligation of the treaty only if they are made criminal by the laws. of both countries".

The petitioner insisted, however, that in no case does the convention require extradition of a fugitive who has sought asylum in the United States unless the criminal act with which he is charged abroad is similarly defined as a crime by the laws of the particular State, district or territory of the United States in which he is found. The only language said to support this contention is the proviso in article X of the treaty of 1842, following the engagement to surrender fugitives charged with specified offenses, which reads as follows:

"Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had there been committed; ...

The Court held that these words do not give any clear indication— "that a fugitive charged with acts constituting a crime named in the treaty is not to be subject to extradition unless those acts are also defined as criminal by the laws of the state in which he is apprehended. The proviso would appear more naturally to refer to the procedure to be followed in the country of the asylum in asserting and making effective the obligation of the treaty and particularly to the quantum of proof-the 'evidence'-which is to be required at the place of asylum to establish the fact that the fugitive has committed the treaty offense within the jurisdiction of the demanding country."

Pointing out that when the treaty was adopted there was no statutory provision of the United States regulating the procedure to be followed in securing extradition of the fugitive, the necessary procedure being provided in the treaty itself, the Court declared that the quoted portion of article X

"prescribes a method of procedure, in conformity with local law, by which compliance with the obligation of the treaty may be exacted at the place of refuge; and sets up a standard by which to measure the amount of the proof of the offense charged which the treaty requires as prerequisite to extradition. The standard thus adopted is that which under local law would determine the sufficiency of the evidence to justify the apprehension and commitment if the crime or offense had there been committed "."