§ 304. Delivery independent of treaty.-While, as we have seen, the United States is powerless to reciprocate the delivery of fugitives in the absence of treaty, many nations, although not obligated to do so, have voluntarily returned to the United States fugitives from justice. Thus, in 1888, Denmark surrendered John A. Benson, charged with obtaining public lands through fraud practiced on the government, and in 1885 Japan surrendered Calvin Pratt, who was charged with forgery in California.19 The jurisdiction of the court to try a prisoner for an offense committed within its jurisdiction is not affected by the question whether the act of the governor of the state was illegal in procuring his return from a foreign government with which there is no extradition treaty. The manner in which the accused is brought before the court cannot impair its jurisdiction.20 In 1893 President Cleveland, in his annual message to Congress, announced that Costa Rica had, as an act of amity, surren it would have in learning that the Bayard, Secretary of State, to Baron d'Almeirim, June 4, 1888, MS. Notes, Portugal. 19 4 Moore Int. L. D. 258; 1 Moore on Extradition, sec. 41, pp. 47-49. In 1817 Sweden and Denmark delivered certain members of an American ship who were charged with murder and piracy. Mexico surrendered Hardin, charged with murder in Tennessee. In 1839 Texas surrendered Cooke, charged with murder in Mississippi. In 1855 Switzerland surrendered Schrock, who was charged with the embezzlement of public funds in Ohio. In 1856 Austria surrendered Morris, who was charged with murder committed on an American vessel on the high seas. In 1864 Cuba surrendered convicts who had escaped from the Tortugas. In 1879 Brazil surrendered Conyngham, who was charged with forgery. See 1 Moore on Extradition, sec. 41, pp. 47-49; 4 Moore Int. L. D. 258. 20 People v. Pratt, 78 Cal. 345, 20 Pac. 731. dered to the United States, upon duly submitted evidence of criminality, a fugitive from justice though no treaty of extradition was in existence.21 In 1886 Mr. Tree, the Minister of the United States at Brussels, reported to Mr. Bayard, Secretary of State, that the administrator of the Congo had stated in conversation that if the United States should signify its desire for the extradition of a fugitive criminal from the independent state of the Congo, the fugitive, on the presentation of proper proofs, would be arrested and delivered to the American authorities. irrespective of the existence of a treaty of extradition or reciprocal arrangement with the United States.22 § 305. Surrender not in pursuance of treaty.-When it is provided by a treaty that fugitives charged with certain crimes shall be surrendered, the reciprocal duty of surrender does not extend beyond the particular cases for which the treaty has made provision.23 But each nation has the right to exercise its own discretion in surrendering fugitives from justice in cases not covered by the treaty, and when a fugitive charged with the commission of a crime as to which the treaty is silent is surrendered, the presumption is that the surrender was made in the exercise of the sovereign discretion of the surrendering power, and as an act of comity. Where a defendant has not been surrendered in pursuance of a treaty, the rule that he cannot be tried for any other offense than that named in the extradition proceeding does not apply. If he is surrendered for trial upon a particular indictment referred to in the warrant of arrest for extradition, the fact that such indictment was set aside upon his motion after extradition does not justify a court in discharging him upon habeas corpus when he is arrested upon a complaint charging him with the commission of the same offense named in the indictment that was set aside.24 "For. Rel. 1893, V; 4 Moore Int. J.. D. 258. Mr. Tree to Mr. Bayard, Secretary of State, No. 108, June 12, 1886, For. Rel. 1886, 33; 4 Moore Int. L. D. 258. United States v. Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 234, 30 L. ed. 425; Commonwealth v. Hawes, 13 Bush, 697, 26 Am. Rep. 242. 24 Ex parte Foss, 102 Cal. 347, 41 Am. St. Rep. 182, 36 Pac. 669, 25 L. R. A. 593. § 306. Delivery under immigration acts. The laws of the United States that authorize the return of alien convicts to the country to which they belong may, incidentally, have the effect of placing a criminal within the dominion of the authorities of the country from which he made his escape. But such laws do not take the place of treaties of extradition, and do not authorize the Executive to surrender fugitives from justice on the demand of foreign governments.25 § 307. Territory occupied by United States. In 1900 the statute was amended so as to provide for the extradition of persons violating the laws of a foreign territory occupied by the United States or under its control.26 Under this provision Cuba was held to be foreign territory, although, at the time, the island was under a military government appointed by the President of the United States for the purpose of assisting the inhabitants of that island to form a government of their own.27 The Constitution contains certain fundamental guaranties of life, liberty and property relating to the writ of habeas corpus, bills of attainder, ex post facto laws, and trial by jury for crimes. These, however, have no bearing on crimes committed without the jurisdiction of the United States against the laws of a foreign country.28 § 308. Treaty measure of right. The right to demand extradition depends upon the language of the treaty, and is measured and restricted by the express or implied provisions of the treaty.29 A foreign government can claim no right to demand the return of a fugitive from justice who has found an asylum in the United States, without a treaty conferring such right.30 A statute of a state authorizing the governor, in his discretion, to deliver over 25 4 Moore Int. L. D. 259; 1 Moore on Extradition, sec. 31; Mr. Frelinghuysen, Secretary of State, to Mr. Willamov, November 14, 1882, MS. Notes to Russia, VII, 403. 26 See act of June 6, 1900, amending Rev. Stats., sec. 5270. "Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. Rep. 302, 45 L. ed. 448. 28 Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. Rep. 302, 45 L. ed. 448. 29 Commonwealth V. Hawes, 76 Ky. (13 Bush) 697, 26 Am. Rep. 242. 30 Ex parte Dos Santos, Fed. Cas. No. 4016, 2 Brock. 493. But see as to the law of nations in the absence of a treaty, In re Washburn, 3 Wheel. C. C. 473; In re Sheazle, Fed. Cas. No. 12,734, 1 Wood. & M. 66. to justice any person found in the state who is charged with a crime committed out of the jurisdiction of the United States is unconstitutional.31 Courts are not obligated by the principles of international law alone without a treaty or statute to remand prisoners for trial to a foreign government.32 Under a treaty providing that "neither of the contracting parties shall be bound to deliver up its own citizens, under the stipulations of this treaty," a citizen of the United States charged with a murder committed in one of the states of Mexico will not be surrendered.33 The right of foreign nations to demand the surrender of fugitives from justice aside from treaty stipulations has never been recognized by the United States.34 § 309. Crime committed within jurisdiction. The treaties of extradition provide usually for the surrender of a person found in the territory of one of the contracting powers for an offense committed within the jurisdiction of the other. And it should appear that the crime was committed within the jurisdiction of the government demanding jurisdiction.35 Jurisdiction is held to be convertible with the term "country.' 36 An offense com "In re Vogt, 50 N. Y. 321; S. C. 44 How. Pr. 171. United States v. Davis, Fed. Cas. No. 14,932, 2 Sum. 482. It was held that the treaty with France, respecting the surrender of fugitives from justice could not be executed by the President of the United States in the absence of legislation. In re Metzger, 1 Park. Cr. Rep. 108. Ex parte McCabe, 46 Fed. 363, 12 L. R. A. 589. In this case the authorities are reviewed at length and the court said: "If there were no pre-existing obligation to extradite a fugitive, the obligation must necessarily grow out of either statute law or treaty engagement. It is, therefore, apparent that the purpose of the treaty was to authorize the parties to do something which they had no previous authority to do. The parties came together through their respective representatives, and made an agreement-an obligatory, binding agreement-to surrender, under certain circumstances, persons who commit crimes and flee from offended justice. They are authorized to act as they bind themselves. The agreement is mutual; the rights and obligations reciprocal. If power to surrender be not affirmatively given, the right to demand a fugitive can have no existence. The right to demand implies ex vi termini, the corresponding authority and obligation to surrender. But both to exist should be founded upon express stipulations.' 34 In re Fetter, 23 N. J. L. (3 Zab.) 311, 57 Am. Dec. 382. 35 Cushing, Atty. Gen. 1856, 8 Op. 215. 36 Williams, Atty. Gen., 14 Op. 281. The court had held otherwise. In re Stupp, 11 Blatchf. 124, Fed. Cas. No. 13,562. mitted on board of a public ship of war on the high seas is committed within the jurisdiction of the nation to whom the ship belongs.37 When the Russian Minister expressed a desire that a proposed treaty of extradition should provide for the extradition of persons charged with the commission of crimes against the laws of either country committed outside of its territorial jurisdiction, Mr. Fish, Secretary of State, said: "This cannot be conceded. It is at once repugnant to the policy of this Government and to the criminal jurisprudence of the United States, and in effect would render the municipal law of one country operative within the territorial sovereignty of another independent sovereign power. By the Constitution of the United States an accused party is entitled to trial within the state and district wherein the crime shall have been committed; no offender can be tried in the United States for an offense committed without its jurisdiction."' 38 § 310. Crime not complete in one country.—But a person who is charged with poisoning, resulting in death, in Canada, may be extradited to Canada, although it may appear that the poison, if given at all, was administered in the United States.39 A British subject, charged with the commission of murder on board of a British steamship, on which he was a seaman, while the vessel was lying at a Cuban port, was brought on the regular voyage of the steamer to New York. The authorities of Cuba had refused to entertain jurisdiction of the offense on the ground that it was committed on board of a British vessel by a British subject. On his landing in New York the British government demanded his extradition, which was granted.40 But where the United States, in 1891, requested of Great Britain the arrest of a person who had escaped from a jail at Constantinople and was supposed to be on his way from New York to England, it was replied that the British government had no power to arrest the 37 President Adams to Mr. Pickering, Secretary of State, May 21, 1799; 8 John Adams' Works, 651; 1 Moore on Extradition, 135; Wharton's State Trials, 392. 38 Mr. Fish, Secretary of State, to Mr. Jewell, May 9, 1874, MS. Inst. 39 Sternaman v. Peck, 83 Fed. 690, 28 C. C. A. 377. 40 1 Moore on Extradition, 138. |