agreement or compact with another State, or with a foreign
power," without the consent of Congress.

This settles the question. The States are excluded by the
Constitution from all official intercourse with foreign nations.



Il6 HOW TO PROCEED.

They can not make a treaty. They can not contract to de-
liver up a fugitive, and they can not do the thing itself, for no
State can do a thing which it has not the power to agree to do.
See The People, ex rel. Francis C. Barlow vs. Curtis, 50 N. Y.
321.

The Treaty Power. The Constitution of the United States
reposes the power of making treaties in the President and
Senate. Article II, Sec. 2, reads : "He (the President) shall
have power, by and with the advice and consent of the Senate,
to make treaties, provided two-thirds of the Senators concur."
This language, being general, covers all sorts of treaties, as
Justice Story remarks, "for peace or war, for commerce or
territory, for alliance or succors, for indemnity, for injuries or
payment of debts, for the recognition and enforcement of prin-
ciples of public law, and for any other purposes which the pol-
icy or interests of independent sovereigns may dictate in their
intercourse with each other."

Still the treaty power is limited by the Constitution itself,
not in words but by construction, for it can not be supposed
that the President and Congress are authorized to make a
treaty that would supersede or interfere, in any way, with the
other fundamental provisions of the Constitution.

There is no question, then, that the subject of extradition
comes within the treaty power, especially as it has been made
the subject of treaties between different countries from very
early times. "

Citizens and Foreigners. It has been claimed by some that
a difference ought to be made between citizens and foreigners;
that if a citizen of the United States should commit a crime
in England and flee to this country, his home, the Government
ought to be under less obligation to deliver him up than a cit-
izen of England who should flee here for refuge. But there is
no distinction made whatever. Some treaties distinctly pro-



EXTRADITION TREATIES. 1 17

vide that neither nation shall be obliged to deliver up its own
citizens, and, of course, in this case there is no obligation to
deliver them up the contract must be carried out. But many
treaties make no such provision, and in this case no difference
is made.

EXTRADITION TREATIES.

The object of a treaty between two sovereign powers is to
establish reciprocal rights and impose reciprocal obligations.
The contract gives each the right to demand of the other a
fugitive, a*nd imposes on each the duty to deliver up such fugi-
tive when the conditions are in accordance with the treaty
stipulations. It is for each political sovereignty to determine
how far it will concede to another the right to demand, and
how far it will assume the obligation to surrender fugitives.
When this is once determined by treaty the rights and obliga-
tions become reciprocal. Still the faithfulness with which the
provisions of the treaty are carried out depends entirely upon
national honor, for there is no way of enforcing the provisions
of a treaty except by war.

Crimes. In the treaties now existing between the United
States and foreign nations there are altogether about thirty
crimes for which extradition is provided. The principal ones
are: i. Arson. 2. Assassination. 3. Assault with intent to
commit murder. 4. Bigamy. 5. Burglary. 6. Circulation or
fabrication of counterfeit money. 7. Counterfeiting public
bonds, bank bills, securities, stamps, dies, seals, etc. 8. Em-
bezzlement of public money. 9. Embezzlement by public offi-
cers. 10. Embezzlement by persons hired or salaried. 11.
Forgery. 12. Utterance of forged paper. 13. Infanticide. 14.
Kidnaping. 15. Murder. 16. Mutiny. 17. Mutilation. 18.
Parricide. 19. Piracy. 20. Poisoning. 21. Rape. 22. Rob-
bery.

There are several other crimes of a special nature provided



Il8 HOW TO PROCKKI).

for in a few treaties, as fraudulent bankruptcy and fraudulent
barratry in the treaty with Peru, abortion and the willful de-
struction or obstruction of railroads, endangering human life,
in the treaty with Belgium. The nations to a treaty frequently
speak different languages, in which case the treaty is written in
both languages. The terms or names used to designate crimes
are the titles known and acknowledged between the parties to
mean the same thing. If there is a different shade of meaning
or doubt as to the meaning the definition is given, as in the
supplemental article of Feb. 24, 1845, to the treaty of 1843
with France, burglary is placed in the extradition list and de-
fined to be "breaking and entering by night into the mansion-
house of another with intent to commit felony." If we have a
statutory definition of burglary different from this, and the stat-
utory crime were committed, we could not extradite the fugi-
tive from France under this treaty. In order to extradite un-
der a treaty the crime must be exactly the same as the one pro-
vided for by the treaty. The definition can not be enlarged or
changed to a slightly different shade of offense, but must be
interpreted strictly.

Evidence. In the United States treaties the rule of evi-
dence is that of the country on which the demand is made. As
much evidence should be adduced to sustain the charge of crim-
inality on which the demand is based as would justify the arrest
and committment for trial in the country on which the demand
is made. The laws of the country making the demand have
nothing to do with this rule of evidence. The same is true in
regard to determining whether the crime falls within the pro-
visions of the treaty. The nation upon which the demand is
made always decides this question.

The demand must be made by the highest political author-
ity of the nation, or by ministers or officers, duly authorized to
make such demand. The demand, must recite the crime with



EXTRADITION TREATIES. I 19

which the fugitive is charged ; it must be accompanied by
properly authenticated evidence of the guilt of the accused, and
the crime charged must be one for which extradition is pro-
vided in the treaty. , The demanding nation must make out its
case and the nation on whom the demand is made is the sole
judge of whether the case is made out, and from its decision
there is no appeal. If the treaty specifically provides what
evidence or proof shall be submitted, as is sometimes the case,
then this must be followed.

The first treaty ever negotiated by the United States Gov-
ernment, which contained extradition provisions, was with
Great Britain in 1794, and the 27th article of that treaty pro-
vided for the extradition of fugitives charged with murder and
forgery. This provision of the treaty expired by limitation in
1806 and from that time to 1842 there was no extradition treaty
existing between Great Britain and the United States. The
treaty of 1842 added five crimes to the two of the old treaty,
making seven in all. The treaty with Italy ratified March 3,
1868, recites eight extradition crimes. Each treaty stands
alone and contains such list of crimes as the high contracting
parties deem conducive to the ends of justice. As a rule, mis-
demeanors and all minor offenses are omitted, only the graver
and more heinous crimes being made extraditable. Political
offenses are expressly excluded from twenty of the treaties now
existing between this and foreign countries. Treason and
sedition are political offenses ; so would be crimes against the
right of suffrage. Sometimes crimes that would ordinarily be
considered political are declared not to be, and made extradit-
able, as in the treaty with Belgium, of June 13, 1882, which
provides that " an attempt against the life of the head of a
foreign Government, or against that of any member of his
family, when such attempt comprises the act either of murder
or assassination, or of poisoning, shall not be considered a polit-
ical offense, or an act connected with such an offense."



120 HOW TO PROCEED.

Crimes committed before the treaty is made are expressly
excluded in eight existing treaties, and three others exclude
crimes committed before the date of ratification of the treaty.
If crimes committed before the treaty is made are not ex-
pressly excluded from its operation they become extraditable
under the treaty. Judge Blatchford decided this point in the
case of Angelo De Giacomo, 12 Blatch. 391, who was extradited
under the treaty between the United States and the King of
Italy. Judge Blatchford said that inasmuch as there was " no
stipulation precluding its application to crimes committed be-
fore the date of the treaty, that it was applicable to such of-
fenses, if within the enumeration, as well as to those com-
mitted subsequently to its date."

Two of these treaties declare that no surrendered person
shall be tried for a crime committed before the one for which
he was extradited.

If the person demanded has committed a crime in the
country in which he has taken refuge, and has there been ar-
rested for it, or is undergoing prosecution or punishment for
it, extradition is ordinarily deferred until his acquittal, or the
expiration of his punishment. This is expressly provided for
in twenty-two of these treaties.

If two countries demand a fugitive at the same time from
a third, the custom is to surrender to the demand which is the
earliest in date, and this is expressly provided for in the pres-
ent treaty with Spain.

A fugitive extradited to one country should not by that
country be surrendered to a third without the consent of the
first country unless the accused consent to go or unless he re-
main in the country receiving him first a sufficient length of
time to have gone back to the country from which he was first
brought. The present treaty with Belgium provides for this
and fixes the time at one month after his discharge.



EXTRADITION TREATIES. 121

Convicts. Unless the treaty expressly stipulate convicts
they will not be extradited. In eleven existing treaties con-
victs are included. In other cases the fugitive is charged with
crime and demanded for trial and punishment. Convicts are
presumed to have been tried and are simply demanded for
punishment.

It is now well settled in International Extradition that a
person can not be put upon trial for a different crime from that
for which he was extradited. If the fugitive, after his extradi-
tion, however, should commit a crime in the country that de-
manded and received him, the fact of his extradition would
give him no immunity from the consequences of this crime.
The fugitive has a right of asylum in the country to which he
has fled as to all crimes committed in the demanding country
prior to his extradition. When the country withdraws this
right of asylum and delivers him up, it does so only as to those
crimes, and offers no protection against any crime that he may
commit in the future.

The decisions on this question are numerous and elaborate
and the customs of courts in all countries are almost uni-
form in the position that a fugitive can not be tried for any
crime other than the one for which he was extradited, unless
it be committed subsequent to his extradition.

We have not space to give the entire text of all the existing
extradition treaties between the United States and foreign
countries, but the following synopses will be found to contain
all the essential features of each. We present them in chrono-
logical order, giving dates, countries, extraditable crimes in
each, and special provisions. The expense is always borne by
the party who makes the requisition.

I. GREAT BRITAIN, AUGUST 9, 1 842.

Crimes. 1. Murder. 2. Assault with intent to commit
murder. 3. Piracy. 4. Arson. 5. Robbery. 6. Forgery.
7. Utterance of forged paper.



122 HOW TO PROCEED.

Evidence. Such as according to the laws of the place where
the fugitive or person so charged shall be found, would justify
his apprehension and commitment for trial if the crime or of-
fense had there been committed.

II. FRANCE, NOVEMBER 9, 1 843.

Crimes. 1. Murder (comprehending the crimes designated
in the French Penal Code by the.terms assassination, parricide,
infanticide, and poisoning). 2. Attempt to commit murder. 3.
Rape. 4. Forgery. 5. Arson. 6. Embezzlement by public
officers when the same is punishable with infamous punish-
ment.

Surrender is made on the part of France by the Keeper of
the Seals, Minister of Justice, and of the United States by
authority of the "Executive.

Provisions do not apply to said crimes committed anterior
to date of treaty, nor to political offenses.

Treaty continues in force until abrogated by the consent of
the parties.

Additional Article, Feb. 24, 1845. This article added two
crimes, robbery and burglary, and was made a part of the orig-
inal treaty. It defines both crimes: Robbery, the felonious and
forcible taking from the person of another, of goods or money
to any value, by violence, or putting him in fear. Burglary,
breaking and entering by night into a mansion-house of an-
other, with intent to commit felony, and the corresponding
crimes included under the French law in the words vol qual-
ifie crime.

Additional Article, Feb. 10, 1858. This article added the
following crimes to the others : Forging or knowingly passing
or putting in circulation counterfeit coin, or bank notes, or
other paper current as money, with intent to defraud any per-
son or persons ; embezzlement by any person or persons hired
or salaried, to the detriment of their employers, when these
crimes are subject to infamous punishment.



EXTRADITION TREATIES. 1 23

III. HAWAIIAN ISLANDS, DECEMBER 20, 1 849.

Crimes. 1. Murder. 2. Piracy. 3. Arson. 4. Robbery.

5. Forgery or the utterance of forged paper.

Evidence. Same as Great Britain.

IV. SWISS CONFEDERATION, NOVEMBER 25, 1850.

Crimes. 1. Murder (including assassination, parricide, in-
fanticide and poisoning). 2. Attempt to commit murder. 3.
Rape. 4. Forgery or the emission of forged papers. 5. Arson.

6. Robbery with violence, intimidation or forcible entry of an
inhabited house. 7. Piracy. 8. Embezzlement by public offi-
cers, or by persons hired or salaried to the detriment of their
employers, when these crimes are subject to infamous punish-
ment.

Surrender is made on the part of the Swiss Confederation
by the Federal Council.

Offenses committed before date of treaty excluded.

This treaty was made for ten years and renewable from
year to year, without official notice by either party that they
desired to withdraw. It can be terminated at any time by
either party, giving twelve months' notice.

V. PRUSSIA AND OTHER STATES, JUNE l6, 1852.

This treaty expressly includes the following States of the
German Empire: Prussia, Saxony, Hesse, Hesse and on Rhine,
Saxe-Weimar-Eisenach, Saxe-Meiningen, Saxe-Altenburg, Saxe-
Coburg-Gotha, Brunswick, Anhalt-Dessau, Anhalt-Bernburg,
Nassau, Schwarzburg-Rudolstadt, Schwarzburg-Sondershaus-
en, Waldeck, Reuss (elder branch), and Ruess (junior branch),
Lippe, Hess-Homburg, and the free city of Frankfort.

Crimes. 1. Murder. 2. Assault with intent to commit
murder. 3. Piracy. 4. Arson. 5. Robbery. 6. Forgery. 7.
Utterance of forged papers. 8. Fabrication or circulation of



124 HOW TO PROCEED.

counterfeit money, whether coin or paper money. 9. Embez-
zlement of public moneys.

Evidence. Same as Great Britain.

Citizens. No one of the contracting parties obliged to de-
liver up its own citizens.

New Crime. If the fugitive commits another crime in the
country in which he has taken refuge he shall not be delivered
up until he has stood trial for said crime and been acquitted or
served out his punishment.

Termination. This treaty was made to continue in force
until Jan. ist, 1858, and then indefinitely until either party
gives twelve months' notice of a desire to withdraw.

VI. BREMEN, SEPTEMBER 6, 1 853.
The preceding treaty with Prussia and other German
States contained a clause to the effect that its provisions should
apply to any other State of the Germanic Confederation that
might thereafter declare its accession thereto. Under that pro-
vision the free Hanseatic city of Bremen declared their acces-
sion to the said convention. This had the same effect as
though Bremen had joined with the other German States in
making the original treaty.

VII. BAVARIA, SEPTEMBER 12, 1 853.

Crimes. 1. Murder. 2. Assault with intent to commit
murder. 3. Piracy. 4. Arson. 5. Robbery. 6. Forgery. 7.
Utterance of forged papers. 8. Fabrication or circulation of
counterfeit money, whether coin or paper money. 9. Embez-
zlement of public moneys.

Citizens of neither nation are surrendered to the other.

New Crime. Same as Prussia.

VIII. WURTTEMBERG, OCTOBER 1 3, 1 853.
The King of Wurttemberg formally declared his accession



EXTRADITION TREATIES. 1 25

to the treaty of June 16, 1852, between the United States and
Prussia and other States.

IX. MECKLENBURG-SCHWERIN, NOVEMBER 26, 1 853.

The Grand Duke of Meeklenburg-Schwerin officially de-
clared his accession to the treaty of June 16, 1852, between
Prussia and the United States.

X. MECKLENBERG-STERLITZ, DECEMBER 2, 1 853.

The Grand Duke of Mecklenberg-Sterlitz formally acceded
to the same treaty.

XI. OLDENBURG, DECEMBER 30, 1 853.
The Grand Duke of Oldenburg came in to the same treaty.

XII. SCHAUMBURG-LIPPE, JUNE 7, 1 854.
The Reigning Prince of Schaumburg-Lippe acceded to the
same treaty.

XIII. HANOVER, JANUARY 1 8, 1 855.

The crimes and other conditions of this treaty are exactly
the same as that made with Bavaria, No. vn.

XIV. TWO SICILIES, OCTOBER I, 1 855.

Crimes. 1. Murder (including assassination, parricide, in-
fanticide and poisoning). 2. Attempt to commit murder. 3.
Rape. 4. Piracy. 5. Arson. 6. Making and uttering false
money. 7. Forgery, including forgery of evidences of public
debt, bank bills and bills of exchange. 8. Robbery with vio-
lence, intimidation, or forcible entry of an inhabited house.
9. Embezzlement by public officers, including appropriation of
public funds, when these crimes are subject to the punishment
della reclusione or other severe punishment by the code of the
Two Sicilies and to infamous punishment in the United States.

The executive of each country makes the surrender.

Citize?is and subjects are exempt.



126 HOW TO PROCEED.

Political offenses and those committed prior to the treaty
are excluded.

Termination. This treaty can be terminated by either
party by giving twelve months' notice of a desire so to do.

XV. AUSTRIA, JULY 3, 1 856.

Crimes. 1. Murder. 2. Assault with intent to commit
murder. 3. Piracy. 4. Arson. 5. Robbery. 6. Forgery.
7. Fabrication or circulation of counterfeit money, whether
coin or paper money. 8. Embezzlement of public moneys.

Citizens are not surrendered by either party.

Political offenses and crimes committed prior to date of
treaty are excluded.

New Crimes. The fugitive who has committed a crime in
the country to which he has fled will not be delivered up until
he has been discharged from that.

XVI. BADEN, JANUARY 20, 1 857.

Crimes. 1. Murder. 2. Assault with intent to commit
murder. 3. Piracy. 4. Arson. 5. Robbery. 6. Forgery.
7. Fabrication or circulation of counterfeit money, whether
coin or paper money. 8. Embezzlement of public moneys.

Evidence same as in Great Britain.

Citizens are not delivered up by either party.

New crime same as Austria.

Political crimes are exempt.

XVII. SWEDEN AND NORWAY, MARCH 21, i860.

Crimes. 1. Murder (including assassination, parricide, in-
fanticide, and poisoning). 2. Attempt to commit murder. 3.
Rape. 4. Piracy (including mutiny on board a ship, whenever
the crew or part thereof, by fraud or violence against the com-
mander, have taken possession of the vessel). 5. Arson. 6.
Robbe^. 7. Burglary. 8. Forgery. 9. Fabrication or cir-
culation of counterfeit money, whether coin or paper money.



EXTRADITION TREATIES. 1 27

to. Embezzlement by public officers, including appropriation
of public funds.

Citizens are not surrendered by either party.

Political offenses are exempt.

New crimes same as Austria.

XVIII. VENEZUELA, AUGUST 27, i860.

Crimes. 1. Murder (including assassination, parricide, in-
fanticide and poisoning). 2. Attempt to commit murder. 3.
Rape. 4. Forgery. 5. Counterfeiting of money. 6. Arson.
7. Robbery with violence, intimidation or forcible entry of an
inhabited house. 8. Piracy. 9. Embezzlement by public offi-
cers or by persons hired or salaried, to the detriment of their
employers, when these crimes are subject to infamous punish-
ment.

The executives make the surrender.

Political offenses and crimes committed prior to date of
treaty exempt.

This treaty was made for eight years and then to continue
indefinitely, each party having the power to arrest the opera-
tions of the treaty at any time by giving twelve months' notice.

XIX. MEXICO, DECEMBER II, 1861.

Crimes. 1. Murder (including assassination, parricide, in-
fanticide and poisoning). 2. Assault with intent to commit
murder. 3. Mutilation. 4. Piracy. 5. Arson. 6. Rape. 7.
Kidnaping, defining the same to be the taking and carrying
away of a free person by force or deception. 8. Forgery, in-
cluding the forging or making, or knowingly passing or putting
in circulation counterfeit coin or bank notes, or other paper
current as money, with intent to defraud any person or persons.
9. The introduction or making of instruments for the fabrica-
tion of counterfeit coin or bank notes, or other paper current
as money. 10. Embezzlement of public moneys. 11. Robbery,



128 HOW TO PROCEED.

defining the same to be the felonious and forcible taking from
the person of another of goods or money, to any value, by vio-
lence or putting him in fear. 12. Burglary, defining the same
to be breaking and entering into the house of another with in-
tent to commit felony. 13. The crime of larceny of cattle or
other goods and chattels, of the value of twenty-five dollars or
more, when the same is committed within the frontier States
or Territories of the contracting parties.

The usual rule of evidence applies in this treaty.

Requisition is made (in case the crime is committed in the
frontier States or Territories of the contracting parties)
"through their respective diplomatic agents, or through the
chief civil authority of said States or Territories, or through
such chief civil or judicial authority of the districts or counties
bordering on the frontier as may for this purpose be duly au-
thorized by the said chief civil authority of the said frontier
States or Territories, or when, from any cause, the civil au-
thority of such State or Territory shall be suspended, through
the chief military officer in command of such State or Terri-
tory."

Surrender is made by the executive authority of each
country "except in cases of crimes committed within the
limits of the frontier States or Territories, in which latter case
the surrender may be made by the chief civil authority thereof,
or such chief civil or judicial authority of the districts or
counties bordering on the frontier as may for this purpose be
duly authorized by the said chief civil authority of the said
frontier States or Territories, or if, from any cause, the civil
authority of such State or Territory shall be suspended, then
such surrender may be made by the chief military officer in
command of such State or Territory."

Following are exempt: political offenses; fugitive slaves;
criminals who, when the offense was committed, shall have



EXTRADITION TREATIES. 1 29

been held in the place where the offense was committed in the
condition of slaves; crimes enumerated committed anterior to
exchange of ratifications of this treaty; and citizens neither
party delivers up its own citizens.

The treaty can be abrogated at any time by either party
giving twelve months' notice of a desire to do so.

XX. HAYTI, NOVEMBER 3, 1 864.

Crimes. 1. Murder (including assassination, parricide, in-
fanticide and poisoning). 2. Attempt to commit murder. 3.
Piracy. 4. Rape. 5. Forgery. 6. Counterfeiting of money.
7. Utterance of forged paper. 8. Arson. 9. Robbery. 10.
Embezzlement by public officers, or by persons hired or sal-
aried, to the detriment of their employers, when these crimes
are subject to infamous punishment.

Surre?ider is made by the executives.

Political offenses and crimes committed before the date of
the treaty exempt.