Extradition treaty

“ It is manifest that the act does not attempt to confer power upon the Executive to surrender any person, much less a citizen of the United States, to a foreign government where an extradition treaty or convention does not provide for such surrender. ”

“ A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters.... Anglo-American Extradition Treaty of 1977, Article XII (1) , 28 U.S.T. 227, T.I.A.S. No. 8468. The defendants contend that the District Court violated the Treaty by admitting evidence of facts that went beyond "the facts in respect of which" extradition had been granted. ”

“ It would be easy to agree in an extradition treaty that either government should have a right to refuse extradition on the certificate of the foreign minister that he considered the surrender, for special reasons, inexpedient. It would be understood that his object was to guard against the abuse of the treaty for political purposes. All ordinary criminals ought to be surrendered with the most cheerful facility. American swindlers are not guests so welcome in England that they ought to be refused to the reclamations of the victims whom they have plundered at home. ”

“ While the escape of criminals is, of course, to be very greatly deprecated, it is still most important that a treaty of this nature between sovereignties should be construed in accordance with the highest good faith, and that it should not be sought, by doubtful construction of some of its provisions, to obtain the extradition of a person for one offense and then punish him for another and different offense. ”

“ A conflict between International and Municipal Law arises if a certain individual must be extradited according to an extradition treaty, but cannot be extradited according to the Municipal Law of the State from which extradition is demanded. ”

“ In support of this contention, petitioner asserts that it is a general principle of international law that an offense for which extradition may be had must be a crime both in the demanding country and in the place where the fugitive is found, and that the applicable treaty provisions, interpreted in the light of that principle, exclude any right of either country to demand the extradition of a fugitive unless the offense with which he is charged is a crime in the particular place of asylum. ”

“ It should be observed, in the first place, that we have always insisted not only with reference to the Italian extradition treaty, but with reference to the other extradition treaties similarly phrased, that the word 'persons' includes citizens. ”

“ 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. ”

“ Henkel, 190 U.S. 40, 61, 23 S.Ct. 781, 47 L.Ed. 948. But the principles of international law recognize no right to extradition apart from treaty. While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he had fled, and it has been said that it is under a moral duty to do so (see 1 Moore, Extradition, § 14; Clarke, Extradition (4th Ed.) p. 14) , the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty. ”

“ We do not wish, however, to be understood as holding that, in extradition proceedings, the complaint must be sworn to by persons having actual knowledge of the offense charged. This would defeat the whole object of the treaty, as we are bound to assume that no foreign government possesses greater power than our own to order its citizens to go to another country to institute legal proceedings. ”

“ The treaty only provides in art. 6 (26 Stat. at L. 1508, 1510) , that 'the extradition of fugitives under the provisions of this convention and of the said 10th article' (of the treaty of August 9, 1842) 'shall be carried out in the United States and in Her Majesty's dominions respectively, in conformity with the laws regulating extradition, for the time being in force in the surrendering states.' This evidently contemplates the laws of the United States regulating extradition, and has no reference whatever to the laws of the particular state within which the proceedings are taken. ”

“ And the universal practice of nations is to surrender criminals only in consequence of some special treaty with the country which demands them.
There are two practical difficulties about extradition which have probably prevented the growth of any uniform rule on the subject. One is the variation in the definitions of crime adopted by different countries. The second is the possibility of the process of extradition being employed to get hold of a person who is wanted by his country, not really for a criminal, but for a political offence. ”

“ The treaty is undoubtedly obligatory upon both powers, and, if Congress should prescribe additional formalities than those required by the treaty, it might become the subject of complaint by the Russian government and of further negotiations. But notwithstanding such treaty, Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient. ”

“ The result would be that the foreign government, though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. ”

“ Ordinarily, not all criminals are liable to extradition, though treaty stipulations may cover cases usually excepted. Those accused of political crimes have, since the early part of the nineteenth century, been more and more generally exempt from extradition. ”

“ It is impossible to conceive of representatives of two civilized countries solemnly entering into a treaty of extradition, and therein providing that a criminal surrendered according to demand, for a crime that he has committed, if, subsequently to his surrender, he is guilty of murder or treason or other crime, is, nevertheless, to have the right graranteed to him to return unmolested to the country which surrendered him. We can imagine no country, by treaty, as desirous of exacting such a condition of surrender, or any country as willing to accept it. ”

“ In this relation I may refer to the necessity of some amendment of our existing extradition statute. It is a common stipulation of such treaties that neither party shall be bound to give up its own citizens, with the added proviso in one of our treaties, that with Japan, that it may surrender if it see fit. It is held in this country by an almost uniform course of decisions that where a treaty negatives the obligation to surrender the President is not invested with legal authority to act. ”

“ To support a demand for extradition from Great Britain it is therefore necessary to show that the offence is one of those enumerated in the Extradition Acts, and also in the particular treaty, and that the acts charged amount to the offence according to the laws both of Great Britain and of the state demanding the surrender. ”

“ If the Requested State receives requests from the other Contracting State and from and other State or States for the extradition of the same person, either for the same offense or for different offenses, the executive authority of the Requested State shall determine to which State it will surrender the person. ”

“ It is true that art. 6 of the treaty provides that 'when the person whose surrender is asked shall be merely charged with the commission of an extraditable crime or offense, the application for extradition shall be accompanied by an authenticated copy of the warrant of arrest or of some other equivalent judicial document, issued by a judge or a magistrate duly authorized to do so.' But it can hardly be expected of us that we should become conversant with the criminal laws of Russia, or with the forms of warrants of arrest used for the apprehension of criminals. ”

“ The police will stumble on something. I tell you frankly that if you are arrested I could do little or nothing for you. The United States protects only harmless political outcasts. Yours is a crime such as nullifies your citizenship, and any government would be compelled, according to the terms of treaty, to send you back here, if the demand was made for your extradition. ”

“ Another field which the President and Congress have each occupied at different times is extradition. In 1799 President Adams, in order to execute the extradition provisions of the Jay Treaty, issued a warrant for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites in his opinion: "This action was challenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. ”

“ III. But the court's decision rests upon the ground that the United States impliedly agreed to extradite for acts not made criminal by its laws or the laws of the state of asylum. Admittedly England did not so agree. There is no warrant for the discrimination. The parties dealt as equals. All their extradition treaties disclose the intention that they shall stand on the same footing. The governing principle always has been reciprocity and equality.
The extradition provisions of the Jay Treaty of 1794, art. ”

“ The 'certificate' attesting 'that a requisition has been made,' etc., was 'exhibited' to Judge Blair; and we fail to find in this clause of the treaty any requirement that the subsequent 'formal demand' for the extradition shall be filed with magistrate within forty days after the arrest of the accused, or at any other time. The whole of the convention should be read together and in connection with § 5270, Revised Statutes, which is applicable to all treaties. ”