Samuel Freeman Miller

“ I concede that the treaty is as much a part of the law of the United States as is a statute; and, if there is anything in it which forbids a trial for any other offense than that for which the extradition was made, the accused may use it as a defense to a prosecution on any other charge until a reasonable time has elapsed after his release from custody on account of the crime for which he was sent back. ”

“ This difference between the judicial powers of the courts of Great Britian and of this country in regard to treaties is thus alluded to by Chief Justice MARSHALL in the supreme court of the United States: 'A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. ”

“ A fugitive from justice has no absolute right of asylum in a country to which he flees; and, if he can be got back within the jurisdiction of the country whose laws he has violated, he may be proceeded with precisely the same as if he had not fled, unless there is something in the laws of the country where he is to be tried, or in the way in which he was got back, to prevent. I do not understand this to be denied. All, therefore, depends, in this case on the treaty with Great Britain under which this extradition was effected and section 5275 of the Revised Statutes. ”

“ It is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties made by one independent government with another. ”

“ The difference between serving process in a civil action brought by a private party, whether arrest be an incident to that process or not, and the indictment and prosecution of a person similarly situated for a crime not mentioned in the treaty of extradition under which the defendant was by force brought to this country, is too obvious to need comment. ”

“ There is no necessity for the states to enter upon the relations with foreign nations, which are necessarily implied in the extradition of fugitives from justice found within the limits of the state, as there is none why they should in their own name make demand upon foreign nations for the surrender of such fugitives. ”

“ The right of one government to demand and receive from another the custody of an offender who has sought asylum upon its soil, depends upon the existence of treaty stipulations between them, and in all cases is derived from, and is measured and restricted by, the provisions, express or implied, of the treaty.'
In 1881 a case involving the same question came before the Texas court of appeals, (Blandford v. State, 10 Tex. App. 627,) in which the same principles were asserted as in that of Hawes. ”

“ No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.
The opposite view has been attempted to be maintained in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the offense was committed to try the person for the crime alone for which he was extradited ”

“ It is unreasonable that the country of the asylum should be expected to deliver up such person to be dealt with by the demanding government without any limitation, implied or otherwise, upon its prosecution of the party. ”

“ It is understood that the rule which he lays down represents as well what he understands to be existing law as also what he supposes it should be.
A very learned and careful work published in this country by Mr. Spear, in 1884, after considering all the correspondence between our government and Great Britain upon the subject, the debate in the house of lords, the articles of Mr. Lawrence and Judge Lowell, as well as the treatise of Mr. Clarke, an English writer, with a very exhaustive examination of all the decisions in this country relating to this matter, arrives at the same conclusion. ”

“ In exercising its discretion, it might be very willing to deliver up offenders against such laws as were essential to the protection of life, liberty, and person, while it would not be willing to do this on account of minor misdemeanors, or of a certain class of political offenses in which it would have no interest or sympathy. ”

“ Judge BENEDICT said that, 'while abuse of extradition proceedings, and want of good faith in resorting to them, doubtless constitutes a good cause of complaint between the two governments, such complaints do not form a proper subject of investigation in the courts, however much those tribunals might regret that they should have been permitted to arise. * * * But, whether extradited in good faith or not, the prisoner, in point of fact, is within the jurisdiction of the court, charged with a crime therein committed ”