tion than the one whose laws have been violated, and, therefore, the duty of surrendering him applies as well to the case of the subjects of the state surrendering, as to the case of subjects of the power demanding the fugitive. The only difficulty, in the absence of positive agreement, consists in drawing the line between the class of offences to which the usage of nations does, and to which it does not apply, inasmuch as it is understood, in practice, to apply only to crimes of great atrocity, or deeply affecting the public safety. The act of the legislature of New York, of the 5th April, 1822, c. 148, gave facility to the surrender of fugitives, by authorizing the governor, in his discretion, on requisition from a foreign government, to surrender up fugitives charged with murder, forgery, larceny, or other crimes, which, by the laws of this state, were punishable with death or imprisonment in the state prison; provided the evidence of criminality was sufficient, by our laws, to detain the party for trial on a like charge. (a) Such a legislative provision was requisite, for the judicial power can do no more than cause the fugitive to be arrested and detained, until sufficient means and opportunity have been afforded for the discharge of this duty, to the proper organ of communication with the power that makes the demand. (b)

(a) The N. Y. Revised Statutes, vol. i. 164, sec. 8, 9, 10, 11, have adopted and continued the same provision.

(b) The constitution of the United States has provided for the surrender of fugitives from justice as between the several states, in cases "of treason, felony, and other crime”; but it has not designated the specific crimes for which a surrender is to be made, and this has led to difficulties as between the states. Thus, for instance, in 1839, the Governor of Virginia made application to the Governor of New York for the surrender of three men, charged by affidavit as being fugitives from justice, in feloniously stealing and taking away from one Colley, in Virginia, a negro slave, Isaac, the property of Colley. The application was made under the act of Congress of February 12, 1793, c. 7, sec. 1, founded on the constitution of the United States, art. 4, sec. 2, as being a case of "treason, felony, or other crime," within the constitution and the law, and certified as the statute directed. The Governor of New York refused to surrender the supposed fugitives, on the ground that slavery and property in slaves did not exist in New York, and that the offence was not a crime known to the laws of New York, and consequently not a crime within the meaning of the constitution and statute of the United States. But the legislature of New York, by concurrent resolutions of the 11th of April, 1842, declared their opinion to be, that stealing a slave within the jurisdiction and against the laws of Virginia, was a crime within the meaning of the 2d section of the 4th article of the constitution of the United States. The executive and legislative authorities of Virginia also considered the case to be within the provision of the constitution and the law, and that the refusal was a denial of right. It was contended, that the constitution of the United States recognizes the lawful existence of slaves as property, for it apportions the representation among the states on the basis of distinction between free 人

The European nations, in early periods of modern history, made provision by treaty for the mutual surrender of criminals seeking refuge from justice. Treaties of this kind were made between England and Scotland in 1174, * and England and *38 France in 1308, and France and Savoy, in 1378; and the last treaty made special provision for the surrender of criminals, though they should happen to be subjects of the state to which they had fled. Mr Ward these treaties as evidence considers of the advancement of society in regularity and order. (¿)

:

persons and other persons; and it provides, in art. 4, sec. 2, for their surrender, when escaping from one state to another: - that slaves were regarded by law as property in nearly all the states, and protected as such, and particularly in New York, when the constitution was made; that the repeal of those laws, and renunciation of that species of property, in one state, does not affect the validity of the laws, and of that species of property in another state; and that the refusal to surrender felons who steal that property in Virginia, and flee with it or without it to New York, on the ground that blacks are no longer regarded as property in New York, is a violation of the federal compact, and of the act of Congress founded thereon. This case and that of Holmes, mentioned in a preceding note, involve very grave considerations. I have read and considered every authority, document, and argument on the subject that were within my command, and in my humble view of the questions, I cannot but be of opinion, that the claim of the Canadian authorities in the one case, and of the Governor of Virginia in the other case, were equally well founded, and entitled to be recognized and enforced. In the case from Canada, the jurisdiction of it belonged exclusively to the authorities of Vermont. The United States have no jurisdiction in such cases, except under a treaty provision. The duty of surrendering on due demand from the foreign government, and on due preliminary proof of the crime charged, is part of the common law of the land, founded on the law of nations as part of that law; and the state executive is to cause that law to be executed, and to be assisted by judicial process, if necessary. The statute of New York is decisive evidence of the sense of that state, and it was in every respect an expedient, just, and wise provision, in no way repugnant to the constitution or law of the United States, for it was "no agreement or compact with a foreign power." The whole subject is a proper matter of state concern, under the guidance of municipal law, (stipulations in national treaties always excepted,) and if there be no express statute provision, the exercise of the power must rest in sound legal discretion, as to the nature of the crime and as to the sufficiency of the proof. The law of nations is not sufficiently precise to dispense with the exercise of that discretion. But private murder, as in the Vermont case, is free of all difficulty, and it would be dealing unjustly with the aggrieved foreign government, and be eminently disgraceful to the character of the state and to our constitutional authorities, to give an asylum to fugitives loaded with such atrocity. If there be no authority in this country, state or national, to surrender such a fugitive, then it is idle to talk about the authority of the law of nations as part of the common law. Then "public law, the personification, as it were, of natural justice, becomes a mere nonentity, the beautiful figment of philosophers, and destitute of all real influence on the fortunes of mankind."

(a) History of the Law of Nations, vol. ii. 318-320.

(b) By the treaty of amity, commerce, and navigation between Great Britain and the United States, in November, 1795, it was by the 27th article agreed, that persons

Ambassadors form an exception to the general case of foreigners resident in the country, and they are exempted absolutely from all allegiance, and from all responsibility to

Ambassadors.

charged with murder or forgery, seeking an asylum in the dominions of either party, should be delivered up on due requisition, provided the evidence of criminality be sufficient to justify apprehension and commitment for trial, if the offence had been committed in the jurisdiction where the requisition is made. But this treaty, on this and other points, expired by its own limitation after the expiration of twelve years. The provision was happily renewed by the treaty between the United States and the United Kingdom of Great Britain and Ireland, signed at Washington, August 9, 1842, and afterwards duly ratified. This treaty terminates the question, so far as the two countries are concerned, which had long embarrassed the councils and courts in this country. By the 10th article of the treaty it is declared, that the two powers respectively, upon requisitions by the due authorities, should deliver up to justice all persons who, being charged with the crime of murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, committed within the jurisdiction of either, should seek an asylum, or should be found within the territories of the other; provided, that this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed. A similar convention was made between the United States and France, and ratified at Washington, April 12, 1844; but the provision was extended to the crime of an attempt to commit murder, and to rape, and embezzlement by public officers, when the same is punishable with infamous punishment. The treaty provisions would seem to require statute provisions of the several governments to carry the treaties for surrendering fugitives more promptly into effect.1 The act of 8 and 9 Vict. c. 120, has such a provision in respect to the treaty of Washington, in 1842; without any special provision on the subject, the power and duty of duly carrying into effect treaties of that kind would belong, exclusive of the state authorities, to the courts and magistrates of federal jurisdiction. The legislature of the Kingdom of Belgium, by a law of the first of October, 1833, authorized the surrender of fugitives from foreign countries upon the charge of murder, rape, arson, counterfeiting the current coin or forging public bank paper, perjury, robbery, theft, peculation by public trustees and fraudulent bankrupts; but with the proviso, that the law of the foreign

1 It has been held that persons charged with piracy may be arrested here and surrendered, without any special act of Congress to carry the treaty into effect. They may be examined and ordered into custody by a state magistrate. The application may be made by the British minister, although there has been no indictment found by the British tribunals, nor any warrant issued therefrom; the order for the surrender may be signed by the Secretary of State. The British Prisoners, 1 Wood. & Minot, 66.

On the 12th Aug. 1848, an Act was passed by Congress giving effect to treaty stipulations which existed, or thereafter might exist, with any foreign government for the apprehension and delivery of fugitives. The proceedings mentioned above would seem to be warranted under the act.

It is an approved rule in the policy of the United States not to grant or ask extradition, except in those cases which are exactly defined by express conventions. Opinions of the Attorneys-General, vol. vi. pp. 85, 431. Id. vol. vii. 642.

the laws of the country to which they are deputed. As they are representatives of their sovereigns, and requisite for negotiations

country be reciprocal in the case, and that the judgment or judicial accusation be duly authenticated, and the demand be made within the time of limitation prescribed by the Belgic law.2 Pinheiro-Ferreira severely condemns this law, and contends for protection to the fugitive, and that the tribunals of the country to which he resorts should take cognizance of criminal cases equally as of matters of contract! See Cours de Droit Public, par Le Comm. S. Pinheiro-Ferreira, Paris, 1830, tome ii. pp. 24-34, Revue Etrangère de Législation, et d'Economie Politique, No. 2, Paris, December, 1833. Some other foreign jurists, of more established reputation, maintain the same doctrine, and hold that crimes committed in one state may, if the criminal be found in another state, be, upon demand, punished there. Hurtius, de Collis. Leg. P. Voet, de Statut. cited in Story's Comm. Conflict of Laws, 516-520. Martens's Law of Nations, b. 3, c. 3, sec. 22, 23. Grotius de Jure B. & P. b. 2, c. 21, sec. 4. The latter says, that every government is bound to punish the fugitive criminal on demand, or deliver him up. But the better opinion now is, both on principle and authority, that the prosecution and punishment of crimes are left exclusively to the tribunals of the country where they are committed. Kaimes's Princip. of Equity, vol. ii. 326. Merlin, Répertoire, Souveraineté, sect. 5, n. 7, pp. 757, 758. Pardessus, Droit Comm. tome v. art. 1467. If, indeed, the fugitive is to be tried and punished for a crime committed out of the territory, the punishment must be according to the law of the place where the offence was committed. Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur. Bartholus, cited in Henry on Foreign Law, 47. It is, however, a decided and settled principle in the English and American law, that the penal laws of a country do not reach, in their disabilities, or penal effects, beyond the jurisdiction

2 A convention for the mutual extradition of fugitives from justice was concluded between the United States and Bavaria, Sept. 12, 1853. It recites, as causes of extradition, murder, or assault with intent to commit murder, piracy, arson, robbery, forgery, the utterance of forged papers, the fabrication or circulation of counterfeit money, whether coin or paper, or the embezzlement of public moneys. See also the conventions with Prussia and other states of the Germanic Confederacy, June 16, 1852, and with the Kingdom of Hanover, Jan. 18, 1855, and with the Kingdom of the Two Sicilies, Oct. 1, 1855, and with the Swiss Confederation, Nov. 8, 1855, and with Austria, July 3, 1856, and with the Grand Duchy of Baden, Jan. 30, 1857, with France, Feb. 10, 1858, with Sweden and Norway, March 21, 1860, with Venezuela, Aug. 27, 1860, and with Mexico, Dec. 11, 1861. All these conventions embrace the crimes enumerated in that with Bavaria. Some of them also include rape, some burglary. Those with France, Venezuela, and the Swiss Confederation include embezzlement of private funds, by persons receiving hire or salary, when the crime is an infamous offence where it has been committed. That with Norway and Sweden includes mutiny, where the vessel is taken possession of by the mutineers. That with Mexico includes kidnapping, rape, mutilation, larceny to a value exceeding twenty-five dollars, and the introduction or fabrication of instruments for counterfeiting coin or paper money.

It is stipulated in most of these conventions, that neither of the contracting parties shall surrender its own citizens; and in several, that if the party demanded is under any criminal charge in the country where he is found, he may be held for trial, and if convicted, for punishment, notwithstanding the demand. Under none of these treaties or conventions can the extradition of persons charged with political offences be demanded.

and friendly intercourse, their persons, by the consent of all nations, have been deemed inviolable, and the instances are rare in which popular passions, or perfidious policy, have violated this immunity. Some very honorable examples of respect for the rights of ambassadors, even when their privileges would seem in justice to have been forfeited on account of the gross abuse of them, are to be met with in the ancient Roman annals, notwithstanding the extreme arrogance of their pretensions, and the intemperance of their military spirit. (c) If, however, ambassadors should be so regardless of their duty, and of the object of their privilege, as to insult or openly attack the laws or government of the nation to whom they are sent, their functions may be suspended by a refusal to treat with them, or application can be made to their own sovereign for their recall; or they may be dismissed, and required to depart within a reasonable time. (d) We have had instances, within our own times, of all these modes of dealing with ministers who had given offence, and it is not to be denied, that every government has a perfect right to judge for itself whether the language or conduct of a foreign minister be admissible. The writers on public law go still further, and allow force to be applied to confine or send away * an am- *39 bassador, when the safety of the state, which is superior to all other considerations, absolutely requires it, arising either from the violence of his conduct, or the influence and danger of his machinations. This is all that can be done, for ambassadors cannot, in any case, be made amenable to the civil or criminal jurisdiction of the country; and this has been the settled rule of public law, ever since the attempt made in the reign of Elizabeth to subject the Scotch and Spanish ambassadors to criminal jurisdiction, and the learned discussions which that case excited. (a)

where they are established. Folliott v. Ogden, 1 H. Black. 123, 135. Lord Ellenborough, Wolff v. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v. Green 17 Mass. 514, 539-543; Scoville v. Canfield, 14 Johns. 338, 440. (c) Livy, b. 2, c. 4; b. 30, c. 25.

(d) In 1797, it was considered by the Attorney-General of the United States, in his letter to the Secretary of State, to be a contempt of the government, for a foreign minister, while a resident minister in the United States, to communicate his sentiments to the people of the United States through the press. His intercourse and correspondence of that kind is to be with the executive department of the government exclusively. Opinions of the Attorney-General, vol. i. 43.

(a) Grotius, b. 2, c. 18, sec. 4; Bynk. de Foro Legatorum, c. 8, 17, 18; Vattel, b. 4, c. 7, sec. 92-103; Ward's History, vol. ii. pp. 486-552; Marshall Ch. J., in the