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R. S. 5270. Fugitives from the Justice of a Foreign Country, 68.
5271. Evidence on the Hearing, 76.
5277. Penalty for Opposing Agent, etc., 78.
5280. Arrest of Deserting Seamen from Foreign Vessels, 88. Act of Aug. 3, 1882, ch. 378, 89. Sec. 1. Extradition Cases to Be Heard Publicly, etc., 89. 2. (Relates to Fees Paid to Commissioners in Extradition Cases, see
JUDICIAL OFFICERS), 89.
6. Repeal, 91.
Fees and Costs - Out of What Appropriations Payable, 91.
Escape of Prisoners, see ESCAPE, vol. 2, p. 874.
Sec. 5270. [Fugitives from the justice of a foreign country.] Whenever there is a treaty or convention for extradition between the Government of the United States and any foreign government, any justice of the Supreme Court, circuit judge, district judge, commissioner, authorized so to do by any of the courts of the United States, or judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within the limits of any State, district, or Territory, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. Provided, That whenever any foreign country or territory, or any part thereof, is occupied by or under the control of the United States, any person who shall violate, or who has violated, the crim
inal laws in force therein, by the commission of any of the following offenses, namely: Murder and assault with intent to commit murder; counterfeiting or altering money, or uttering or bringing into circulation counterfeit or altered money; counterfeiting certificates or coupons of public indebtedness, bank notes, or other instruments of public credit, and the utterance or circulation of the same; forgery or altering, and uttering what is forged or altered; embezzlement or criminal malversation of the public funds, committed by public officers, employees, or depositaries; larceny or embezzlement of an amount not less than one hundred dollars in value; robbery; burglary, defined to be the breaking and entering by nighttime into the house of another person with intent to commit a felony therein; and the act of breaking and entering the house or building of another, whether in the day or night time, with the intent to commit a felony therein; the act of entering, or of breaking and entering the offices of the Government and public authorities, or the offices of banks, banking houses, savings banks, trust companies, insurance or other companies, with the intent to com
mmit a felony therein; perjury or the subornation of perjury; rape; arson; piracy by the law of nations; murder, assault with intent to kill, and manslaughter, committed on the high seas, on board a ship owned by or in control of citizens or residents of such foreign country or territory and not under the flag of the L'nited States, or of some other government; malicious destruction of or attempt to destroy railways, trams, vessels, bridges, dwellings, public edifices, or other buildings, when the act endangers human life, and who shall depart or flee, or who has departed or fled, from justice therein to the United States, any Territory thereof or to the District of Columbia, shall, when found therein, be liable to arrest and detention by the authorities of the United States, and on the written request or requisition of the military governor or other chief executive officer in control of such foreign country or territory shall be returned and surrendered as hereinafter provided to such authorities for trial under the laws in force in the place where such offense was committed. All the provisions of sections fifty-two hundred and seventy to fifty-two hundred and seventy-seven of this title, so far as applicable, shall govern proceedings authorized by this proviso: Provided further, That such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged: And provided further, That no return or surrender shall be made of any person charged with the commission of any offense of a political nature. If so held such person shall be returned and surrendered to the authorities in control of such foreign country or territory on the order of the Secretary of State of the United States, and such authorities shall secure to such a person a fair and impartial trial. [R. S.]
Act of Aug. 12, 1848, ch. 167, 9 Stat. L. ment. — The foreign intercourse of this 302.
country has been conferred upon the federal This section was amended to read as above government, and the treaties which govern given by the Act of June 6, 1900, ch. 793, 31 the rights and conduct of the parties, and the Stat. L. 656. The amendment consisted in Acts of Congress relating thereto, are in their adding the three provisos.
nature exclusive; though it can hardly be adSections 5270 to 5280 constitute title LXVI. mitted that, even in the absence of treaties of the Revised Statutes, “ Extradition." or Acts of Congress on the subject, the ex
" The inquiry into the source of the laws tradition of a fugitive from justice can beof the demanding government is not ma come the subject of negotiation between a terial.” Terlinden v. Ames, (1902) 184 U. S. state of the Union and a foreign government. 270.
U. S. 1'. Rauscher, (1886) 119 U. S. 407; Applies to future treaties. — This section (1841) 3 Op. Atty.-Gen. 661. See Ex P. " is evidently intended to apply to treaties Holmes, (1840) 12 Vt. 631. that might thereafter be made, as well as to A state law, providing that the governor treaties then existing.” Castro v. De Uriarte, may, in his discretion, deliver over to justice (1883) 16 Fed. Rep. 93.
any person found within the state who shall Exclusive jurisdiction of federal govern be charged with having committed, without
the jurisdiction of the United States, any The words“ made criminal by the laws crime except treason, is unconstitutional and of both countries” in a treaty should not be void. Matter of Vogt, (N. Y. Super. Ct. interpreted as limiting its scope to acts of (1872) 44 Hlow. Pr. (N. Y.) 171; People v. Congress, and eliminating the operation of the Curtis, (1872) 50 N. Y. 321.
laws of the states. To do so would largely The executire of a state has no power to defeat the object of extradition treaties by cause a fugitive criminal to be arrested, for ignoring the fact that for nearly all crimes the purpose of delivering him up, at the re and misdemeanors the laws of the states, and quest of a private person, without the inter not the enactments of Congress, must be ference either of the government of the looked to for the definition of the offense. country within whose territorial jurisdiction
There are no common-law crimes of the the offense is alleged to have been committed, United States, and in most of the states the or that of the United States. Com. v. Deacon, criminal law has been recast in statutes, the (1823) 10 S. & R. (Pa.) 125.
common law being resorted to in aid of definiNo extradition without treaty. — Without tion. Wright v. Henkel, (1903) 190 U. S. 40. a stipulation by treaty, however fit it might Jurisdiction. By treaty between the seem in point of comity or morals to sur United States and Prussia, “ the mutual derender citizens of other countries to answer livery of criminals, fugitives from justice, in for offenses committed at home against their certain cases,” was provided for, when the own laws, it is usually considered that there offense was committed within the jurisdicis no political obligation under the laws of tion of either party.” The statute of Prussia nations to do it. Matter of Sheazle, (1845) provided that a Prussian might be prosecuted I Woodb. & M. (U. S.) 66.
according to the criminal law of Prussia, who, A nation whose citizen or subject commits in a foreign country, had committed an act a crime within its own jurisdiction, and is which, according to tne laws of Prussia, was afterwards found within that of another, has considered a crime or misdemeanor, and which no right by the law of nations, upon its de was punishable by the laws of the place where mand, to have him delivered up by that other, it had been committed. It was held that a for the purpose of being tried where the crime Prussian who was charged with having comwas committed. Jose Ferreira dos Santos's mitted a crime in Belgium was within the Case, (1835) 2 Brock. (U. S.) 493.
“ jurisdiction ” of Prussia, and should be surWhen a treaty provides for the extradition rendered upon the request of the government of fugitives charged with particular crimes, of the German empire. In re Stupp, (1873) the reciprocal duty of either nation to deliver 11 Blatchf. (U. S.) 124. up to the justice of the other, persons charged After the above decision was rendered, upon with crime, is confined to the particular cases commitment by the commissioner to await for which the treaty has provided. But the the issuing of a warrant for the surrender existence of a treaty which provides for ex of the accused, the secretary of state submitted tradition for certain crimes does not deprive the question to the attorney-general, who adeither nation of the power and right to ex vised that the “jurisdiction” referred to in ercise its own discretion as an incident to its the treaty was not the jurisdiction of the persovereignty in cases not coming within the son, under the Prussian statute, but the terterms of the treaty. Ex p. Foss, (1894) 102 ritorial jurisdiction of the demanding party, Cal. 347.
and that the accused was not demandable. One accused of having committed a crime
(1873) 14 Op. Atty.-Gen. 281. in a foreign country cannot be remanded to Officer authorized to administer oaths. --the foreign government for trial unless the The oath to a complaint will be sufficient if case is provided for by the stipulations of made before any officer authorized to adminsome treaty. U. S. v. Davis, (1837) 2 Sumn. ister oaths, such as a United States commis(U. S.) 482.
sioner. In re Grin, (1901) 112 Fed. Rep. It is the established rule of the United 790, (1902) 187 U. S. 181. States neither to grant, nor ask for, extra Complaint - Show authority of commisdition of criminals unless in cases for which sioner. — It is not necessary for the comstipulation is made by express convention. plaint to show that the commissioner had (1854) 6 Op. Atty.-Gen. 431; (1853) 6 Op. authority to issue the warrant in question, Atty.-Gen. 85.
if it shows that he had authority for the isThe President would not be justified in suance of warrants in such extradition cases directing the surrender of a person, in order as would include the one in question. In re that he may be brought to trial in the country Farez, (1869) 7 Blatchf. (U. S.) 34, 345, where he is supposed to have committed an 491; Ex p. Lane, (1881) 6 Fed. Rep. 36. offense, when there is no stipulation by treaty Technicality. — The complaint is not rebetween the two governments for the mutual quired to be as precise, technical, and formal delivery of fugitives. (1831) 2 Op. Atty. as an indictment, it being necessary only that Gen. 452; (1833) 2 Op. Atty.-Gen. 559. the substance of the offense be clearly set
Construction of treaties. While the forth, so that the court can see that the phraseology of the treaties should not be ap- 'complaint alleges the commission of one or plied with too much latitude, an adherence to more of the crimes enumerated in the treaty. it so close as to exclude reasonable cosmo In re Roth, (1883) 15 Fed. Rep. 506; In re politan interpretation of them should be not Henrich, (1867) 5 Blatchf. (U. S.) 414; In re less avoided as too narrow. Muller's Case, Farez, (1869) 7 Blatchf. (U. S.) 34, 345, 491, (1863) 5 Phila. (Pa.) 289, 20 Leg. Int. (Pa.) where the court said: “It certainly could 301.
never have been intended by the treaty-mak
ing power, that an alleged fugitive should be initiated and carried on by the foreign govarrested upon a complaint less specific than ernment, and that the complaining witness such as would be required in the case of an was acting under direct authority for such offense committed in the United States," government, it was held that all require
Upon information and belief. – A com ments, in this respect, were satisfactory, as plaint made before the commissioner solely the substance rather than the form should be upon information and belief is bad, but if the regarded. In re Herres, (1887) 33 Fed. Rep. complainant has no personal knowledge of 165, reversing In re Herris, (1887) 32 Fed. the facts, it may be made upon information and belief, provided the source of such infor * The judge has nothing to do with the mation and the grounds of such belief be question whether the government of the forstated, and a properly certified copy of the eign country has duly authorized an applicaindictment or equivalent proceeding which
tion for the extradition to be made. The law has been found in a foreign country, or a is, that, when complaint is made on oath, the copy of the depositions of witnesses having judge is to examine the evidence of criminalactual knowledge of the facts, taken under ity; and, if he deems it sufficient to sustain the treaty and Act of Congress, be annexed to the charge, shall certify the same to the the complaint. Rice v. Ames, (1901) 180 U. secretary of state, that
warrant may S. 371.
issue upon the requisition of the proper auA complaint made upon information and thorities of the foreign government.” belief alone is fatally defective; but “if Dugau, (1874) 2 Lowell (U. S.) 367, 7 Fed. depositions have been taken in a foreign
Cas. No, 4,120. country tending to show the accused guilty Evidence of special authority from the deof the crime, or if an indictment has been manding government to the party making the found against him, or if the representative
complaint is not necessary; if the consular of the foreign government demanding his ex.
title is appended to the signature of the comtradition has fully informed himself with re plaining party and no presumption can arise gard to the particular events by conversations from the complaint that it was made otherwith persons who witnessed them, he may
wise thaŋ as and for the foreign government, make a complaint upon information and be.
it is sufficient. In re Grin, (1901) 112 Fed. lief; but in such case
he should Rep. 790. set forth with some particularity the sources
The complaint need not set forth that a and details of his information, or the grounds
mandate for arrest has been issued by the for supposing the defendant to be guilty."
executive department. In re Macdonnell, Ex p. Lane, (1881) 6 Fed. Rep. 34.
(1873) 11 Blatchf. (U, S.) 79, 16 Fed. Cas. The fact that the first count of the com
No. 8,771. plaint was solely upon information and belief Facts stated do not constitute crime. does not impair the sufficiency of other counts While it may be unnecessary, in the comwhich purport on their face to be made upon plaint required by statute, to state any facts, personal knowledge of the complainant. Rice yet, if the charge of a crime is made in genv. Ames, (1901) 180 U, S. 371.
eral terms, and the complaint also contains It has been held that a complaint, specific all the facts on which that charge is made, in its charges, made upon oath by the consul
and on the admitted facts it clearly appears general of a foreign country, who does not that no such crime has been committed, the profess to any personal knowledge of the mat complaint then disproves the general charge, ters charged against the petitioner, but and takes away the foundation for the warwhose information consists of telegrams and rant. Matter of Heilbonn, (Supm. Ct. 1853) depositions, is sufficient to authorize his re 1 Park, Crim. (N. Y.) 429. mand for examination to the commissioner Foreign warrant or proceedings unneceswho issued the warrant. Ex p. Van Hoven, sary.--" It is not a necessary preliminary (1876) 4 Dill. (U. S.) 415.
step to an investigation here, under an extraThe “complaint under oath” must be on
dition treaty, that a warrant of arrest behalf of the foreign government that is au
should have been issued, or proceedings had, thorized by treaty to have the surrender against the accused, in the foreign jurisdicmade; and where the proceeding is initiated
tion." In re Thomas, (1874) 12 Blatchf. by a person in his private capacity, there (U. S.) 370. must be satisfactory evidence before the com Offense not included in treaty, There can missioner, before the proceeding is closed, be no extradition at the request of a foreign that it is promoted by the foreign govern nation charging the offense of murder on the ment or carried on by its authority. In re high seas or piracy, when the treaty is conFerrelle, (1886) 28 Fed. Rep. 878.
fined expressly to persons who are charged Where, in extradition proceedings under with having committed certain offenses the treaty of 1842 between the United States within the jurisdiction of either nation. and Great Britain, and the statutes, the com (1798) 1 Op. Atty.-Gen. 83. plaint filed before the commissioner did not Specifically named crimes. - When a treaty disclose the fact that the proceedings were provides for the extradition of persons initiated by the demanding government, or charged with a specifically named crime, it that the party filing the affidavit was acting includes all acts which were at the date of otherwise than in his private capacity, yet the treaty held in both countries to constiit appeared in the examination before the tute the crime specified. If, since the date commissioner, or elsewhere than in the com of the treaty, there has been passed a statute plaint, that the proceedings were, in reality, giving the name of that crime to some act
not so called before, such act, although designated as that crime, will not constitute an extraditable offense under the treaty. In Te Cross, (1890) 43 Fed. Rep. 517. But see Muller's Case, (1863) 5 Phila. (Pa.) 289, 20 Leg. Int. (Pa.) 301.
When a treaty provides for the extradition of persons accused of a common-law oflense, such as
burglary,” a person indicted for an offense which, by a state statute, is defined as burglary in the third degree, is not charged with having committed an extraditable offense. But this is not a matter of which the accused can complain; tion of good faith is for the government. Adriance v. Lagrave, (1874) 59 N. Y. 110.
Must be a crime in both countries. - The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered a crime by both parties. Wright v. Henkel, (1903) 190 U. S. 40.
Crime under state statutes. — As there is no common law of the government of the United States, it must have been the intention in the treaties to give effect to the specific crimes mentioned as understood in the legislation of the several states. Muller's Case, (1863) 5 Phila. (Pa.) 289, 20 Leg. Int. (Pa.) 301. But see In re Windsor, (1865) 6 B. & S. 522, 118 E. C. L. 522.
Crimes anterior to treaty. — In some of the treaties entered into by the United States with foreign powers it is expressly stipulated that the treaty shall not apply to crimes committed before its date, while in others only certain anterior crimes are excepted, and in others there is no exception of such crimes. Where the language of the treaty admits of such a construction, and where such crimes are not expressly excepted, they are included in its operation. 12 Am. & Eng. Encyc, of Law (2d ed.)
594, title Extradition; In re De Giacomo, (1874) 12 Blatchf. (U. S.) 391; and see also In re Stupp, (1875) 12 Blatchf. (U. S.) 501.
Accusation. -- Unless required by the terms of the treaty, there need be no such authorized public accusation of equivalent effect with what is in the United States called an indictment or presentment. So far as concerns mere accusation in the country whose government makes the application, any proceeding in that country under which evidence has been or might lawfully be taken there, with a view either to a future criminal prosecution, or to deciding whether to institute one, satisfies the requirements of the treaty. Muller's Case, (1863) 5 Phila. (Pa.) 289, 20 Leg. Int. (Pa.) 301. Political offenses. — It is seldom that per
are surrendered for mere political offenses. Matter of Sheazle, (1845) 1 Woodb. & M. (U. S.) 66.
Offense in the house of foreign minister. As to the right to surrender to a foreign government one who has committed an offense in the house of a foreign minister, see Respublica v. De Longchamps, (1784) 1 Dall. (Pa.) lll. The case was prior to the federal Constitution.
Warrant - Upon complaint on oath. - The commissioner has no power to issue the war
rant, and no jurisdiction under the statute, until a complaint on oath be made before him. Matter of Heilbonn, (Supm. Ct. 1853) 1 Park. Crim. (N. Y.) 429; Ex p. McCabe, (1891) 46 Fed. Rep. 363.
Commissioner's authority. Where a warrant is issued by a United States commissioner for the arrest of the accused under an extradition treaty, it must show on its face that such commissioner has been duly authorized by a United States court to issue the same.
In re Farez, (1869) 7 Blatchf. (U. S.) 34; In re Macdonnell, (1873) 11 Blatchf. (U. S.) 79; In re Kelley, (1885) 25 Fed. Rep. 270; Ex p. McCabe, (1891) 46 Fed. Rep. 363; Ex p. Lane, (1881) 6 Fed. Rep. 34.
The description of the offense in the warrant of arrest may follow the words of the treaty. In Macdonnell, (1873) 11 Blatchf. (C. S.) 79; Castro t. De Uriarte, (1883) 16 Fed. Rep. 95. Issue of erecutive mandate not prerequisite.
The issuing of an executive mandate in a case of extradition is not, unless required by an extradition treaty with the foreign government, the prerequisite to the entertaining of proceedings and the issuing of a warrant of arrest by a magistrate. In re Thomas, (1874) 12 Blatchf. (U. S.) 370; Ex p. Ross, (1869) 2 Bond (U. S.) 252; In re Orpen, (1898) 86 Fed. Rep. 760; In re Herres, (1887) 33 Fed. Rep. 165 (reversing 32 Fed. Rep. 583); Castro i. De Uriarte, (1883) 16 Fed. Rep. 93; International Extradition, (1856) 8 Op. Atty.-Gen. 240; International Extradition, (1853) 6 Op. Atty.-Gen. 91; In re Kelley, (1874) 2 Lowell (U. S.) 339, 9 Am. L. Rev. 167, 14 Fed. Cas. No. 7,655.
But in In re Farez, (1869) 7 Blatchf. (U. S.) 34, 8 Fed. Cas. No. 4,644, it was held that the warrant for the arrest must show a requisition by the foreign government, and an authorization by the United States government. See also In re Kaine, (1852) 14 How. (U. S.) 103; In re Stupp, (1875) 12 Blatchf. (U. S.) 501, 23 Fel. Cas. No. 13,569; In re Henrich, (1867) 5 Blatchf. (U. S.) 414, 11 Fed. Cas. No. 6,369; In re Heilbronn, (1854) 12 N. Y. Leg. Obs. 65, 11 Fed. Cas. No. 6,323. And see In rc Macdonnell, (1873) 11 Blatchf. (U. S.) 70, 16 Fed. Cas. No. 8,771, where this point is quære. Request of foreign government.
- A warrant is valid notwithstanding that it does not appear that the proceedings were insti. tuted at the request or by the authority of the foreign government, although such request or authority must appear at some stage of the proceedings. In re Orpen, (1898) 86 Fed. Rep. 760; In re Adutt, (1893) 55 Fed. Rep. 376; In re Mineau, (1891) 45 Fed. Rep. 188; International Extradition, (1856) 8 Op. Atty.-Gen. 240.
But in In re Farez, (1869) 7 Blatchf. (U. S.) 34, 8 Fed. Cas. No. 4,644, it was held that the warrant for the arrest must show that the foreign government has made requisition, and that the United States government has authorized the apprehension of the arcused. See also In re Kaine, (1852) 14 !!ow. (U. S.) 103; In re Stupp, (1875) 12 Blatchf. (U. S.) 501, 23 Fed. Cas. No. 13,563;