§ 117a. Construction

by the party who makes the requisition and receives the fugitive."

The construction of this treaty has given rise to some difficulties. It of this treaty. has been held that piracy in it does not include piracy jure gentium, but is confined to piracy by municipal law. As pirates jure gentium can be tried anywhere, it was considered that there was no need to give them up (o). In another case the Lord Chief Justice said, "We must assume that the terms employed are used in a sense which they would have in the law of both countries, and not in a sense wholly peculiar to some local law in one of them." And, therefore, where certain acts were made forgery by the law of New York, but did not amount to forgery in England, or by the general law of the United States, the fugitive accused of such acts was not delivered up (p). If the evidence presents several views of the case, on any one of which, if adopted, there may be a conviction, it has been held in Canada that the prisoner may be extradited (q). It has also been determined in Canada that the extradition treaty contains the whole law of surrender between the United States and Canada (r). The offence must also have been committed within the jurisdiction of the country demanding the surrender of the fugitive. In 1858, Thomas Allsop, a British subject, was charged as an accessory before the fact to the murder of a Frenchman in Paris, and escaped to the United States. He could have been tried for this in England (s), but the law officers held that his surrender could not be demanded from America under the treaty, since he was not charged with a crime committed within British jurisdiction (†). But where a person was charged with murder on the high seas, on board a British ship, this was held to be within British jurisdiction, and the prisoner was accordingly surrendered by the United States (u).

§ 117b. Extradition Act, 1870.

In 1870, an Extradition Act was passed in England (x), which provides inter alia, that "A fugitive criminal shall not be surrendered to a foreign State unless provision is made by the law of that State, or by arrangement, that the fugitive shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign State for any offence committed prior

(o) [In re Tirnan, 5 B. & S. 643; 10 L. T. N. S. 449. Cockburn, C. J., dissented from the opinion of the majority. See also the case of The Chesapeake, Parl. Papers, N. America, No. 10 (1876), p. 37.]

(p) [In re Windsor, 6 B. & S. 527; In re Trueman Smith, 4 Upper Canada Practice Rep. 215. As to murder, see Anderson's case, Ann. Reg. 1861, p. 520. As to construction of treaty with France, see The Lennie Mutineers, Parl. Papers, N. America, 1876 (No. 1), p. 97.]

(2) [R. v. Gould, 20 Upper Canada C. P. 154.]

(r) [R. v. Tubbee, 1 Upper Canada Prac. Rep. 98.]

(s) [24 & 25 Vict. c. 100, s. 9; and 24 & 25 Vict. c. 94, s. 1.]

(t) [Forsyth, Cases and Opinions on Constitutional Law, p. 368. And see Opinions of Attorneys-General (U. S.), vol. viii. 215.]

(u) [In re Bennett, 11 L. T. N. S. 488.]

(a) [33 & 34 Vict. c. 52. See Appendix B.]

Laurence.

to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded" (y). In February, 1875, a person Case of named Laurence escaped from the United States, and sailed for England. The American Government requested that he should be arrested on his arrival on a charge of forgery. This was done, and he was accordingly sent back. Before the trial Her Majesty's Government were informed that he was also to be tried on a charge of smuggling, an offence not included in the treaty. Lord Derby thereupon instructed the British Minister in America to protest if Laurence was tried for any crime but that for which he had been extradited. Mr. Fish contended that neither by the general law of extradition, nor the practice of both countries, could such a proviso be implied in the treaty (z). He cited the cases of Von Aerman (a), Paxton (b), Caldwell (c), and Burley (d), to show that, under the treaty, criminals had been extradited for one offence and tried for another; and he contended that the Act of 1870, being subsequent to the treaty, and made by only one party, could not incorporate any new terms into it. Lord Derby declined to recede, and refused to give up various other American fugitives, whose surrender had been asked for, unless the United States would agree to try them for no other offences but those they were extradited for. His Lordship quoted the case of The Lennie mutineers (e), where it was held that a prisoner delivered up under the French Extradition Treaty for murder, could not be tried in England for being an accessory after the fact. The discussion ended without any conclusion being arrived at; Mr. Fish informing Lord Derby that Laurence would not be tried for anything but forgery, the offence for which he was surrendered (ƒ).

The President, in his message to Congress in 1877, stated that both the English and American Governments "are now in accord in the belief that the question is not one that should be allowed to frustrate the ends of justice, or to disturb the friendship between the two nations. No serious difficulty has arisen in accomplishing the extradition of criminals where necessary. It is probable that all points of disagreement will, in due time, be settled, and, if need be, more explicit declarations be made in a new treaty" (g).

(y) [Ibid. sect. 3, sub-sect. (2).] (z) [Mr. Fish to Col. Hoffmann, Parl. Papers, N. America, 1876 (No. 1), p. 80.]

(a) [4 Upper Canada Rep. 288.] (b) [10 Lower Canada Jur. 212.] (c) [8 Blatchford, C. C. 131.] (d) [Parl. Papers, N. America, 1876 (No. 3).]

(e) [Old Bailey, 4th May, 1876. Parl. Papers, N. America, 1876 (No. 1), p. 97. See 36 & 37 Vict. c. 60, s. 3. Appendix B.]

(f) [Mr. Fish to Mr. Pierrepont,

Aug. 5th, 1876, Parl. Papers, N. Ame-
rica, 1877 (No. 1), p. 5.]

(g) [Annual Message to Congress,
1877. See the Times, 18th Dec. 1877.
A convention between the two countries
was signed at London, 25th June, 1886.
The provisions of Art. 10 of the 1842
Treaty were extended to manslaughter,
burglary, embezzlement, or larceny of
the value of 50 dollars, or 107. and up-
wards, and "malicious injuries to pro-
perty, whereby the life of any person
shall be endangered, if such injuries
constitute a crime according to the laws

Rauscher's
Case.

A case of great interest in this connection was decided by the Supreme Court of the United States in October, 1886. The defendant being charged with murder on board an American vessel on the high seas fled to England, and, on demand, was surrendered on that charge. The Circuit Court of the United States for the Southern District of New York, in which he was tried, did not proceed against him for murder, but upon an indictment under § 5347, Revised Statutes, charging him with cruel and unusual punishment of the man of whose murder he was before accused, such punishment consisting of the identical acts proved in the extradition proceedings, but not constituting an offence provided for in the Ashburton Treaty. The judges of the Circuit Court, being divided in opinion, certified to the Supreme Court for its judgment whether this could be done. It was laid down in the opinion of the Court, delivered by Miller, J., in which the cases upon the subject and the opinions of writers are examined and reviewed:

1. That, prior to treaties, and apart from them, there was no welldefined obligation on one country to deliver up fugitives from justice to another; and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked; and has never been recognized as among those obligations of one government towards another which rest upon established principles of international law.

2. That a treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice, and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.

3. That it is the better opinion that in any question of extradition which can arise between the United States and a foreign nation the extradition must be negotiated through the Federal Government, and not by that of a State, though the demand may be for a crime committed against the laws of that State.

4. That, on a sound construction of the Ashburton Treaty, and Acts of Congress on the subject, Revised Statutes, §§ 5272, 5275, the defendant could not be lawfully tried for any other offence than murder, because a person who has been brought within the jurisdic

of both" countries. The provisions of
the same Art. 10 and of the Convention
were to apply to persons convicted of
the specified crimes, but whose sentence
had not been executed. No fugitive
criminal was to be surrendered if de-
manded in respect of a crime deemed to
be of a political character, or if his sur-
render should be, in fact, demanded with
a view to try or punish him for a crime
of a political character. (Parl. Papers,
United States (No. 2), 1888.) But not-

withstanding the last-mentioned provision, the ratification of the Convention was refused by the Senate, owing, apparently, to apprehensions entertained by certain persons, who seem to exercise an important influence in American politics, that the extended list of extraditable offences would prove inconvenient for themselves or their friends. (Times, 11th Feb. 1888, 14th Feb. 1889, 2nd Feb. 1889, 1st Feb. 1889, 30th Jan. 1889.]

tion by virtue of proceedings under an extradition treaty can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.

5. That the circumstance that the same evidence might be sufficient to convict for the minor offence which was produced before the committing magistrate to support the charge of murder did not justify a departure from the principle of the treaty, the minor charge being an offence for which the treaty made no provision.

Gray, J., concurred, upon the short ground that by the Act of Congress of 3rd March, 1869, c. 141, § 1 (§ 5275, Revised Statutes), the political department of the government had clearly manifested its will, in the form of an express law, that an accused person should be tried only for the crime specified in the warrant of extradition, and should be allowed a reasonable time to depart out of the United States before he could be arrested or detained for another offence. He expressed no opinion upon the broader question, which he considered a question of comity within the domain of diplomacy.

Waite, C. J., dissented. The prisoner having been brought within the jurisdiction was triable there. Whether he ought to be tried for an offence other than that for which he had been delivered was no part of his defence, but a matter for diplomacy. § 5275 of the Revised Statutes only enabled the Federal Government to regain possession of the prisoner if they should desire to keep their faith with Great Britain in respect of the surrender (h).

In another case, decided in December of the same year, where the Ker's Case. defendant was not surrendered by the government of Peru, to which country he had fled, but was arrested in Peru by the United States messenger of his own mere motion, it was held by the Supreme Court that the case was not cognizable by that Court at all, for the defendant had failed to establish that any treaty with the United States conferred upon him a right of asylum in a foreign country, and the Court, therefore, gave no opinion upon the question whether, having thus been forcibly removed, the prisoner could resist trial in the State Court (i).

decision.

The French Courts have recently laid it down as a principle of French international law that a prisoner whose extradition has been obtained, cannot be tried for any crimes but those mentioned in the demand for the surrender (k).

$118.

between

By the convention concluded at Washington on the Treaty 9th November, 1843, between the United States and France and France, it was agreed:

"Art. 1. That the high contracting parties shall, on

(h) U. S. v. Rauscher, 119 U. S. 407.
(i) Ker v. Illinois, 119 U. S. 436: cf.

Re Parisot, 5 T. L. R. 344.

(k) [Dalloz, Jurisp. Gen. 1874, p. 502.]

the United States.

$119. Additional article.

requisitions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other: Provided, that this shall be done only when the fact of the commission of the crime shall be so established, as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial, if the crime had been there committed.

"Art. 2. Persons shall be so delivered up who shall be charged, according to the provisions of this convention, with any of the following crimes, to wit: murder (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning), or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzlement by public officers, when the same is punishable with infamous punishment.

"Art. 3. On the part of the French Government the surrender shall be made only by authority of the Keeper of the Seals, Minister of Justice; and on the part of the Government of the United States, the surrender shall be made only by the authority of the Executive thereof.

"Art. 4. The expenses of any detention and delivery, effected in virtue of the preceding provisions, shall be borne and defrayed by the government in whose name the requisition shall have been made.

"Art. 5. The provisions of the present convention shall not be applied in any manner to the crimes enumerated in the second Article, committed anterior to the date thereof, nor to any crime or offence of a purely political character."

The following additional article to the above convention was concluded between the contracting parties at Washington on the 24th February, 1845, and subsequently ratified.