Order of arrest.

216. The executive authority of a nation upon which a requisition is made, accompanied by due proof of a foreign conviction or warrant of arrest, or other presumptive evidence that the case is one within the provisions of this Section, must direct the arrest of the accused for examination by the proper judicial authority.

A mandat d'arret, issued upon suitable evidence, by the proper judicial authority of France, and setting forth the crime imputed to the accused, is sufficient to justify the preliminary action of the President for the arrest of the alleged fugitive, leaving the ulterior question of his actual extradition to depend on the full evidence of criminality then, as it should appear from the dispatch of the Minister of Foreign Affairs, on its way from France. Lawrence's Wheaton, p. 242, note.

The President, in granting his order, at the request of a foreign government, for the purpose of commencing proceedings in extradition, does not need such evidence of the criminality of the party accused as would justify an order of extradition, but only prima facie evidence. 6 Opinions of U. S. Attorneys-General, p. 217.

The application for surrender, under the treaty of extradition of 1842, between the United States and Great Britain, may be made by the British Minister, and need not be founded on a previous indictment found against the prisoner, by the British tribunals, or on any warrant issuing therefrom. Matter of British Prisoners, 1 Woodbury & Minot's U. S. Circuit Court Rep., 66.

A mere notification, by the local officer of a foreign government, of the escape of an alleged criminal, is not sufficient prima facie evidence of a case to justify the preliminary action of the President. 7 Opinions of the U.S. Attorneys-General, p. 6.

The United States will not make demand for extradition of a person alleged to be a fugitive from the justice of one of the United States, and to have taken refuge in a foreign country, except on the exhibition of a judicial “warrant," duly issued, on sufficient proof, by the local authority of the State in which the crime is alleged to have been committed. 6 Opinions of U.S. Attorneys-General, p. 485.

Clarke, in his Treatise on Extradition, (pp. 96, 98,) states the practice, under the treaties between Great Britain and France, as follows:

"Demands by Great Britain upon France are always made by the Ambassador in Paris, in the name of the English government, directly upon the French government, and are supported by a warrant of arrest, issued by a magistrate in England, and copies of the depositions upon which it was founded. These last, however, are not necessary, the French authori ties being contented to deliver up the fugitive upon the production of the warrant of arrest only."

"The papers are always taken to France by a police officer able to speak to the identity of the accused. Upon this, the demand is considered by the French government; and if it is granted, the fugitive is arrested and given up, without any investigation by a French court. The matter is purely one of State, with which no legal tribunal is competent to deal."

A demand in extradition upon England must be made upon one of the principal Secretaries of State, the Chief Secretary of the Lord-Lieutenant of Ireland, or the Governor of any foreign colony or possession of her Majesty, by the Ambassador, or other diplomatic agent of the foreign government."

The demand need not be accompanied by any copies of depositions, or even a warrant of arrest issued in the foreign country; but it is usual for the Secretary of State to require some prima facie evidence of guilt to be laid before him. If, on consideration, he thinks the surrender should be granted, he issues his warrant, signifying that this requisition has been made, and requiring all magistrates to govern themselves accordingly, and to aid in apprehending the fugitive, and committing him to prison, to be delivered up pursuant to the treaty. The warrant is then taken before a magistrate, who, on the production of the foreign warrant of arrest, and also of some evidence that the accused has committed an offense within the treaty, issues his warrant of arrest.

The American practice is thus stated:

The mode to be pursued in proceedings for the extradition of criminals, is to prefer a complaint to a judge or other magistrate, setting out the offense charged to have been committed, on oath; whereupon, the judge or magistrate is authorized to issue a warrant for the apprehension of the person accused, and upon his being brought before him, to hear and determine the evidence of his criminality; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. 4 Opinions of U. S. Attorneys-General, p. 201.

To similar effect, see 9 Id., p. 379.

But, if requested, the President will issue the previous authorization, thought to be necessary by a portion of the court, in Re Kaine, 14 Howard's U. S. Sup. Ct. Rep., 103. 6 Opinions U. S. Attorneys-General, p. 91.

In this respect, however, the extradition treaties of the United States seem to be of two classes. The treaty between the United States and Austria, July 3, 1856, (11 U. S. Stat. at L., 692, Art. I.,) in its terms appears to contemplate an arrest by judicial authority, in the first instance, upon a complaint made under oath, and that the judicial decision, if against the accused, shall be certified to the executive authorities, in order that a warrant for surrender may issue.

And of the same character are the provisions in the treaty between the United States and

Great Britain, Aug. 9, 1842, Art. X., 8 U. S. Stat. at L., 576.
Bavaria,

Sept. 12, 1853, I., 10 Id., (Tr,,) 175.

Convention between the United States and

Prussia,

(Extended to the)

June 16, 1852, Art. I., 10 U. S. Stat. at L., (Tr.,) 100.

North German Feb. 22, 1868, " III., 15 Id., (Tr.,) 116.
Confederation,

Baden,

Jan. 30, 1857,

I., 11 Id., 714.

On the other hand, the more recent treaties—for example, the convention between the United States and Italy, March 23, 1868, (15 U. S. Stat. at L., (Tr.,) 131, Art. V.,) requires a copy of the foreign warrant, or of the depositions upon which it was granted, to be forwarded, in the first instance, to the Executive and authorities: the executive then to issue a warrant for the arrest of the accused, and his examination before the proper judicial authority.

The provisions presented in this draft embrace both methods.

In one case at least, it has been stipulated that the government of a nation might, before producing documentary evidence, demand the immediate and provisional arrest of the accused or convict; but compliance with the demand was left optional with the government on which the demand was made. When such provisional arrest was granted, the documentary evidence was required to be transmitted within two months, without which the person arrested was entitled to his discharge. Convention between France and

The Grand Duchy

of Saxe Weimar, Aug. 7, 1858, 7 De Clercq, 444, Art. IV.

This provision seems, however, too dangerous to be inserted in an international Code.

Arrest in anticipation of requisition.

217. Upon presumptive evidence of an offense, within the provisions of this Section, the local tribunals, which would have cognizance of it, if committed within their jusisdiction, may arrest the person accused, and detain him for a reasonable time, to afford the foreign government opportunity to make requisition for his surrender. But the evidence must be sufficient to commit for trial, if the offense were committed within the local jurisdiction; and if no requisition be made within one month thereafter, the accused will be entitled to his discharge.

This is in substance the rule laid down by Chancellor KENT, on the review of continental and English authorities, in the Case of Washburn, 4 Johnson's New York Chancery Rep., 106.

To the same effect are Mure v. Kaye, 4 Taunton's Rep., 34; Matter of British Prisoners, 1 Woodbury & Minot's U. S. Circuit Ct. Rep., 66. These authorities, however, are opposed by others.

In the United States v. Davis, 2 Sumner's U. S. Circ. Ct. Rep., 482, it is said, upon principles of international law, and independent of statute or treaty, that courts of justice are neither bound nor authorized to remand prisoners for trial to a foreign government whose laws they are said to have violated. See, also, 1 Opinions of U. S. Attorneys-General, p. 510; 2 Id.,p. 359.

And in the Matter of Henrich, 5 Blatchford's U. S. Circuit Court Rep., 414; Ex-parte Henrich, 10 Cox's Criminal Cases, 626, it is said, that it should seem indispensable that a demand for the surrender of the fugitive should be first made upon the executive authorities of the government, and a mandate of the President obtained, before the judiciary is called upon to act. That at all events, this would be the better practice, and one in keeping with the dignity to be observed between nations in such delicate and important transactions.

That an executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that this executive act must be performed through the Secretary of State, by order of the President. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender. In re Kaine, 14 Howard's U. S. Sup. Ct. Rep., 103. The original arrest may be made by the executive, or, if the statute so provide, it may also be made by the court or the examining magistrate. Dana's Wheaton, § 115, note 73.

In the Commonwealth v. Deacon, (10 Sergeant & Rawle's Rep., 125,) it was held, that in the absence of an extradition treaty, no State magistrate, upon a charge by a private person, can cause a fugitive from a foreign country to be arrested for a crime committed in that foreign country, in order to afford an opportunity to the executive of the United States to deliver him up to the government of that country.

See, in this connection, the note to Article 216.

Preliminary investigation.

218. Before making the arrest or surrender of an alleged fugitive from justice, the nation from which it is asked may determine for itself, upon a preliminary investigation, whether it is presumptively established that the person charged has committed the offense, as defined by this Code; or, in the case of a convict, that he has wrongfully escaped punishment.

It was held, in the Matter of Metzger, (5 N. Y. Legal Observer, 83; see, also, 1 Barbour's New York Rep., 248, and 5 Howard's U. S. Sup. Ct. Rep., 176,) that the test of what constituted the crime is the law of the coun try which demands the fugitive, not that of the nation upon which the demand is made. In Dana's Wheaton, (§ 117, note 75, p. 186,) it is said, that the Extradition Acts are restricted to the cases which have the essential and substantial elements of the offenses specified, and according to

the law of both countries; and the mere fact that an act which, according to the general law of either counntry, has not the character of a particular offense, is treated as such by the law of one of them, does not bring a case within the treaty. We must assume that the terms employed are used in a sense common to both parties to the treaty.

Compare Re Windsor, (6 Best & Smith's Q. B. Rep., 522,) where it was held that the enumeration of crimes in the extradition treaty refers to such acts as amount to any of those offenses, according to the law of England and the general law of the United States, and does not comprise offenses which are only such by the local legislation of some particular State of the American Union; and Re Tivnan, (5 Best & Smith's Q. B. Rep., 696,) where piracy was taken as understood according to the law of the United States rather than the law of nations.

Rules for conducting investigation.

219. The proceedings for the arrest of an alleged fugitive from justice, and the judicial investigation of the charge, must be conducted according to the rules established for similar preliminary proceedings, before the same courts or magistrates, in the case of a person charged with the commission of a like offense within the country.

Clarke, (Extradition, p. 99,) states the rules for the conduct of the investigation as follows, in the case of a demand in extradition upon Great Britain : The prisoner being apprehended and brought before a magistrate, three things are necessary: 1. The identity of the prisoner must be proved; 2. Such evidence of criminality must be given as, according to the laws of the place where he has been found, would justify his appréhension and commitment for trial if the crime or offense had been there committed. Some evidence upon this point is necessary in the first instance, but the magistrate has the usual powers of remand, if it be not sufficient for commitment; 3. The magistrate must be satisfied, either upon the facts of the case or by the evidence of a foreign lawyer, that the offense charged comes within the definition of the crime contained in the treaty. This evidence must be taken in the prisoner's presence, in the usual way. The evidence of criminality, however, may consist, either wholly or in part, of copies of depositions taken by a judge or competent magistrate in the country claiming the fugitive."

If, on examination, the magistrate finds that the acts are not disputed, but that a justification is established antecedent to, and independent of, the acts themselves, he must discharge the prisoner." Id., 105.

In order to enable a justice of the peace to issue his warrant under the statute, 6 and 7 Vict., c. 76, § 1, for the apprehension and committal for trial of an accused person, it need not appear that there was an original warrant for his apprehension in the United States, or depositions taken against him there; and the warrant of such justice of the peace need not