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Published online by Cambridge University Press: 12 April 2017
1 The applicable provisions of the Treaty of 1842 are as follows: ”… and whereas it is found expedient, for the better administration of justice and the prevention of crime within the territories and jurisdiction of the two parties respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up: …” “Article X. It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers, 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 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.”s
2 The applicable provisions of the Convention of 1889 are as follows: “Whereas by the Tenth Article of the treaty concluded between the United States of America and Her Britannic Majesty on the ninth day of August, 1842, provision is made for the extradition of persons charged with certain crimes; “And Whereas it is now desired by the high contracting parties that the provisions of the said article should embrace certain crimes not therein specified, and should extend to fugitives convicted of the crimes specified in the said article and in this convention; “The said high contracting parties have appointed as their plenipotentiaries to conclude a convention for this purpose, …
3 The Act of Congress, August 12, 1848, c. 167, § 1, 9 Stat. 302, prescribed the procedure before a commissioner or federal judicial officer to secure the apprehension and detention of fugitives whose extradition is demanded under any treaty or convention with any foreign government. This enactment was the source of § S270, R. S., now § 651, Tit. 18, U. S. C. A., which provides: “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 …” It does not require that the act charged as a treaty offense be found to be one made criminal by the laws of the place of asylum. By Act of August 3,1882, c. 378, § 5, 22 Stat. 216, § 655, Tit. 18, U. S. C. A., provision was made for receiving in evidence in such proceedings, depositions, warrants and other papers, such as may be received for similar purposes by the tribunals of the foreign country from which the fugitive shall have escaped. This legislation has not been thought to dispense with the necessity of the proviso contained in the Treaty of 1842, which has generally been included in later treaties, see footnote 4, infra, but it has been deemed to have relaxed the procedure exacted by the proviso in favor of the demanding country. Elias v. Ramirez, 215 U. S. 398, 409; Bingham v. Bradley, 241 U. S. 511, 517; In re Dubroca y Paniagua, 33 P. (2d) 181; compare Collins v. Loisel, 259 U. S. 309, 315, 316.
4 The Supplementary Extradition Treaty with Great Britain of December 13, 1900, Malloy's Treaties, 780, added three classes to the list of crimes for which extradition could be demanded under the earlier treaties, but omitted any requirement that they be criminal by the laws of both countries. By the Supplementary Extradition Treaty with Great Britain of April 12,1905, Malloy's Treaties, 798, two other crimes were added to the schedule of extraditable offenses, as follows: “14. Bribery, defined to be the offering, giving or receiving of bribes made criminal by the laws of both countries. “15. Offenses, if made criminal by the laws of both countries, against bankruptcy laws.” By the Dawes-Simon Treaty of 1932, 47 Stat. —, not yet promulgated by Great Britain, the proviso, modified and stated in a separate article, reads as follows: “The extradition shall take place only if the evidence be found sufficient, according to the laws of the high contracting party, applied to, either to justify the committal of the prisoner for trial, in case the crime or offence had been committed in the territory of such high contracting party, or to prove that the prisoner is the identical person convicted by the courts of the high contracting party who makes the requisition, and that the crime or offence of which he has been convicted is one in respect of which extradition could, at the time of such conviction, have been granted by the high contracting party applied to.” This treaty enumerates twenty-seven classes of extraditable offenses and one unnumbered class, but extradition is conditional upon the offense charged being criminal in the country of asylum in the case of two classes only, as follows: “6. Indecent assault if such crime or offence be indictable in the place where the accused or convicted person is apprehended.”
5 In a letter of instructions by Mr. Calhoun, then Secretary of State, to Edward Everett, Minister to Great Britain, of August 7, 1844, the latter was directed to bring the subject to the attention of the British Government, to press upon it this construction of Article X and to ascertain what construction that government intended to adopt. Department of State: 15 Instructions, Great Britain, 205, No. 99. After quoting the provisions of the article the Secretary of State said: “It comprehends all persons, charged with the crimes of murder, robbery, etc., etc., committed within the jurisdiction of the party making the requisition, and found in the territory of that on whom the requisition is made. That these words are broad enough to comprehend the case under consideration is beyond doubt; and of course the only possible question which can be made is, whether it is not taken out by the proviso which immediately follows… .“ and after quoting the proviso he continued: “It is too plain to require proof, that it relates to the evidence on which the fugitive is to be given up to justice, exclusively, without intending to restrict, or change the body of the agreement. That having clearly specified, who were to be delivered up to justice, on the requisition of either party, it became necessary, in order to give effect to the agreement, to specify on what evidence it should be done; and to do that accordingly is the sole object of the proviso. It specifies that it should be done on such evidence of criminality as would justify his apprehension and commitment for trial by the laws of the place where the fugitive is found, had the crime charged been there committed; that is, if the crime charged be murder or robbery, as in this case, on such evidence as would justify apprehension and commitment for trial for murder or robbery at the place. “Taking the body of the agreement and proviso together, it would seem to be unquestionable, that the true intent of the article is, that the criminality of the act charged should be judged of by the laws of the country within whose jurisdiction the act was perpetrated; but that the evidence on which the fugitive should be delivered up to justice, should be by the laws of the place where he shall be found. Both are to be judged by the laws of the place where they occur; and properly so; as they are paramount within their respective limits. And hence it is expressly specified in the body of the agreement, that the crime charged must have been committed within the jurisdiction of the party making the requisition; and, in the proviso, that the evidence, on which the fugitive shall be delivered up, shall be such as is required to apprehend and commit for trial according to the laws of the place where he is found.“ Mr. Everett's report to the Secretary of November 23, 1844 (Department of State: 53 Despatches, Great Britain, No. 216), of his conversations with Lord Aberdeen, British Secretary of Foreign Affairs, on this subject, being deemed unsatisfactory by the Secretary, he directed that the conversations be renewed in a letter of instructions of January 28, 1845 (Department of State: 15 Instructions, Great Britain, No. 120). After pointing out that the question was equally important with respect to all the crimes enumerated in Article X, he said: “It is obvious from the preceding remarks that the question whether the criminality of the act is to be judged by the laws of the country where the offence was committed or thatwhere the fugitive may be found is one of wide extent, and of the first magnitude in the construction of the treaty. We contend that it must be, by the laws of the place where the crime was charged to have been committed, and not that where the fugitive was found; and hold that such construction is in strict conformity with the wording and true intent of the treaty; … “You are accordingly instructed to call again the attention of Her Majesty's Government to the subject, and to urge a speedy decision in strong and earnest language.“ The matter appears to have been fully presented to the British Government by Mr. verett. Department of State: Mr. Everett to the Secretary of State, January 31, 1845, 54 Despatches, Great Britain, No. 250; No. 271, March 3, 1845. But as the British Government took the position that the indictment of itself was not sufficient evidence of the commission of the offense in Florida, further inquiry as to the government's construction of Article X seems not to have been pressed or answered. See also the case of John Anderson, a fugitive slave whose extradition was sought from Canada, discussed in 1 Moore, Extradition, §440.
6 President Tyler, in his message transmitting the Treaty of 1842 to the Senate for consideration, referred to Article X as “carefully confined to such offenses as all mankind agreed to regard as heinous and as destructive to the security of life and property. In this careful and specific enumeration of crimes, the object has been to exclude all political offenses, or criminal charges, arising from wars or intestine commotions.” Executive Documents, Vol. 1, 1842-3, Doc. No. 2, p. 22.
7 Alabama, Code of 1923, Sees. 4131, 4912; Arkansas, Crawford Moses Digest of Statutes of 1921, Sees. 2449 and 2493; California, Penal Code of 1931, Sees. 484, 496; Idaho, Code of 1932, Sees. 17-3902 and 17-3512; Indiana, Burns’ Annotated Statutes of 1926, Sec. 2465; Kansas, Revised Statutes of 1923, Sees. 21-551 and 21-549; Louisiana, Code of Criminal Procedure and Criminal Statutes of 1932, Sec. 1306; Massachusetts, General Laws of 1932, Chap. 266, Sec. 60; Minnesota, Mason's Statutes of 1927, Sees. 10358, 10374; Missouri, Revised Statutes of 1929, Sees. 4095 and 4083; Montana, Penal Code of 1921, Sees. 11410 and 11388; Nevada, Compiled Laws of 1929, Sec. 10543, as amended by L. 1931, Ch. 117, Sec. 1; New Jersey, Sec. 52-116 c (1) of 1925-1930 Supplement to Compiled Statutes of 1911; New York, Penal Law, Sees. 1290 and 1308; North Carolina, Code of 1931, Sees. 4277 and 4250; Ohio, Throckmorton's Annotated Code of 1930, Sec. 12450; Rhode Island, General Laws of 1923, Sees. 6072 and 6070, as amended by L. 1928, Ch. 1208, p. 214; Tennessee, Code of 1932, Sees. 10949,10950; Utah, Compiled Laws of 1917, Sees. 8344 and 8297; Virginia, Code of 1930, Sees. 4459 and 4448; West Virginia, Code of 1931, p. 1469, Ch. 61, Sec. 24; page 1467, Ch. 61, Sec. 18; Wyoming, Revised Statutes of 1931, Sec. 32-318.
8 See Dispatch No. 3, August 4, 1885, Secretary Bayard to Phelps, Minister to England: Letter from Ambassador Choate to the Marquess of Lansdown, of April 5, 1905.
9 See note 7, ante.