Treaty between the United States and

Venezuela, Aug. 27, 1860, Art. XXVIII., 12 U. S. Stat. at L., 1159. Imprisonment for a term of years is infamous punishment, within this clause. 12 Opinions of U. S. Attorneys-General, 326.

Exception of certain offenses.

215. The provisions of this Section do not apply in any manner to cases in any of the following classes: 1. Crimes or offenses of a purely political character;'

2. Any offense committed in furthering civil war, insurrection or political commotion, which, if committed between belligerents, would not be a crime;'

3. Desertions from, or evasions of, military or naval service;3

4. Offenses committed before this Section took effect; and,

5. Offenses which, by reason of the lapse of time, or any other cause, the demanding nation cannot lawfully punish.'

1 This subdivision is suggested by Art. V. of the convention between the United States and France, 8 U. S. Stat. at L., 582; and is usual in other treaties. Bluntschli, (Droit Intern. Copifié, § 396,) says, that this exception is recognized in all the recent treaties.

As to what are political offenses, see 7 De Clercq, 151.

The abuse of asylum is prohibited by Article 207.

This subdivision is suggested in connection with, or as a substitute for, the preceding, in order to define and secure the right of asylum, as understood by the United States. Several French treaties contain a provision that an attempt against the person of a foreign sovereign, or against that of the members of his family, where the attempt constitutes the act either of murder "d'assassinat ou empoisonnement," shall not be considered as a political offense.

Additional convention of Sept. 22, 1866, to convention of Nov. 22, 1834, between France and Belgium, 7 De Clercq, 151.

Convention between France and

The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Clercq, 444. Great Britain has steadily refused to surrender political offenders, or to deny them asylum. Extradition of political offenders obtains between the States of the German Confederation. But Heffter states this as an exception to the established principle. Wheaton's Elem. Int. Law, Pt. II., Ch. II., § 13, note.

3 In no treaty do the United States include these, except so far as de

serters from naval service may be reclaimed by the consul. See Section II. of this Chapter, on EXTRADITION OF DESERTERS.

There are conventions between some European countries-e. g., between Russia and Prussia, Aug. 8, 1857-for the mutual surrender of deserters, and persons owing future military service. Dana's Wheaton, § 120,

note 79.

There are also conventions between European powers, for the restitution of arms, horses and equipments of deserters. See, for instance, 7 De Clercq, pp. 411, 412, 442, 496, 511.

4 This exception is usual in the American treaties.

5 Some of the French treaties have made the limitation laws of the nation where the offender is found, a bar to his extradition.

It may be thought desirable to add such a provision as the following: No nation is bound to deliver up, under the provisions of this Section, a person who, according to the provisions of this Code, is a member of the same at the time the demand for his surrender is made. Fiore, (Nouveau Droit International, vol. 1, p. 329,) says, this is the generally received rule. Such a provision is contained in the following treaties : Convention between the United States and

The King of Swe

den & Norway, Mar. 21, 1860, Art. IV., 12 U. S. Stat. at L., 1126.

June 16, 1852, III., 10 Id., (Tr.,) 101.

Treaty between the United States and

Austria, July 3, 1856, Art. II., 11 U. S. Stat. at L., 693.

It is understood that the British extradition treaties all provide. that neither party shall surrender its own subjects. stitutional Law, by Forsyth, p. 371, note.

France is understood to hold the same rule.

Cases & Opinions in Con

Letter of Mr. Lawrence,

Transactions of National Association for Promotion of Social Science, 1866, p. 156.

And see the convention between France and

The Grand Duchy of Saxe Weimar, Aug. 7, 1858, 7 De Clercq, 444. Austria, Nov. 13, 1855, 6 Id., 579. Bluntschli, (Droit Intern. Copifié, § 399,) states the exception of citizens as one now recognized even by the States which admit the obligation of extradition. But it has, as he says, grave inconvenience for the administration of criminal justice, and had better be abandoned.

Dana, (in his edition of Wheaton, § 120, note 77,) says, that the obligation or willingness of a State to surrender its own citizens, who are charged with crimes committed abroad, and have sought refuge in their own country, is affected by the consideration whether such State punishes its citizens for crimes so committed.

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.

66

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

Convention between the United States and

Prussia,
(Extended to the)
North German
Confederation,

Baden,

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

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.