Harlan F. Stone

“ In the British statute 'fraud' is qualified by 'made criminal by any act for the time being in force.' A corresponding definition of 'fraud' in the treaty was needed for clarification, and so the clause 'made criminal by the laws of both countries' was added. The doubts that reasonably might arise as to the meaning of the words used more than justified this qualification. Fraud may or may not constitute crime. When the word is used without qualification it does not mean a criminal offense. The item extends to numerous classes of persons, even to members of a corporation. ”

“ It is said that, as some states denounce as criminal the receiving of money or property knowing the same to have been fraudulently obtained while others do not, extradition is made to depend upon the place where the fugitive happens to be found. That suggestion gives no support to the decision. The negotiators well knew that criminal laws are not the same throughout the territories involved. England acted for all parts of the British Empire, the United States acted for itself and all the states. ”

“ The extradition provisions of the treaty with Great Britain of 1842 [1] are embodied in article 10, which provides that each country 'shall * * * deliver up to justice all persons who, being charged with' any of seven named crimes 'committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other.' The crime charged here is not one of those specified in article 10 and is therefore not an offense with respect to which extradition may be demanded, unless made so by the provisions of the supplemental convention of 1889. ”

“ As shown by our minister's report, Lord Aberdeen merely held that under the Act of Parliament carrying the treaty into effect 'an indictment is not of itself sufficient ground for giving up a fugitive.' And he remarked that the same answer would have been given had the persons demanded been free. The question presented and decided was merely one of evidence. The secretary's suggestions as to requirements of criminality in the asylum country were not germane and therefore without weight as an official interpretation. ”

“ It safely may be said that she does not now seek the adoption of a contrary construction. But taking a new hold she insists that the requirement of criminality in both countries is here satisfied. In support of that position she says that petitioner cannot be convicted without proof of guilty knowledge; that the record shows he was a party to the fraud by which the money was obtained, and that, as obtaining by false pretenses and participation in that offense are both criminal in Illinois and extraditable, it must be held that extradition of the petitioner would be within the rule. ”

“ Once the contracting parties are satisfied that an identified offense is generally recognized as criminal in both countries there is no occasion for stipulating that extradition shall fail merely because the fugitive may succeed in finding, in the country of refuge, some state, territory or district in which the offense charged is not punishable. ”

“ The Webster-Ashburton Treaty of 1842 (8 Stat. 572) in its preamble declares: 'And whereas it is found expedient, for the better administration of justice and the prevention of crime within the territories and jurisdiction of the two parties, respectively, that persons committing the crimes hereinafter enumerated, and being fugitives from justice, should, under certain circumstances, be reciprocally delivered up.' (Italics supplied.) It repeats the clause, originating in the Jay Treaty, providing for mutual requisitions. It includes five additional crimes making seven in all. ”

“ If some offence, unknown to the law of other nations-to what may figuratively be called the common law of nations-should be created by the law of a particular people, such an offence would not come within the category of crimes which it is the purpose of extradition to repress. ”

“ His suggestion, arguendo, that the treaty requires extradition for acts not made criminal in the place of asylum has never been adopted in England. That country has never claimed and does not now maintain that the interpretation so brought forward is binding on the United States. It has never been followed in practice. It is directly repugnant to the contentions of the United States and the opinion of this court in Wright v. Henkel, supra, and conflicts with a long line of judgments following that decision. ”

“ Many of her people strongly favored abolition in the United States and everywhere. Many slaves had fled from this country to the West Indies and to Canada. Shortly before the case in which Secretary Calhoun wrote the letters in question, it was earnestly maintained by leaders in the House of Lords that slaves who for the purpose of securing their freedom killed their masters were guilty of no offense. [14] Some of England's most eminent statesmen and jurists opposed extradition of fugitive slaves for any transgression of our laws. ”

“ It is not denied that the phrase 'unlawfully obtained,' standing alone, is as broad as the phrase 'fraudulently obtained.' But it is asserted that its use in association with the word 'stolen' restricts its meaning to offenses of the same type of unlawfulness as stealing, which it is said involves only those forms of criminal taking which are without the consent or against the will of the owner or the possessor. ”

“ England fails to produce any part of it. She appears to attribute to Secretary Calhoun's contentions cited in our order little, if any, greater weight than when they were put aside by Her Majesty's Government nearly a century ago. It is to be presumed that, if correspondence leading up to the Dawes-Simon Treaty would support the idea that local criminality is not essential, England would produce it here.
On reargument England gave little, if any, support to its claim that the 'receiving' alleged against petitioner is crime in Illinois. ”

“ There are offences against society in respect of person and property, which, in all countries, there will always be found persons disposed to commit, and which can only be kept under by the strong arm of the law. ”

“ The United States, upon the indictment without more, demanded their extradition. The insular court held no ground for extradition had been shown. It said: 'An indictment per se can never be received as evidence. It is not enough for us to know that the American jury thought the parties guilty. ”

“ On reargument petitioner brought forward all diplomatic correspondence available to him. It related, not only to the Treaties of 1842 and 1889, but also to subsequent treaties prior to the Dawes-Simon Treaty 1932. The latter, designed to cover the entire field and to supersede the treaties under consideration, was adopted after extended negotiation. It has been ratified by the Senate and published here. But, while it was duly ratified in England on July 29, 1932, the Order-in-council necessary there to make it effective has not yet been promulgated. ”