Extradition

“ Since extradition is the delivery of an incriminated individual to the State on whose territory he has committed a crime by the State on whose territory he is for the time staying, the object of extradition can be any individual, whether he is a subject of the prosecuting State, or of the State which is required to extradite him, or of a third State. ”

“ An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the justice of the peace directing his arrest. ”

“ Since, however, modern civilisation categorically demands extradition of criminals as a rule, numerous treaties have been concluded between the several States stipulating the cases in which extradition shall take place. According to these treaties, individuals prosecuted for the more important crimes, political crimes excepted, are actually always surrendered to the prosecuting State, if not punished locally. ”

“ 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. ”

“ 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. ”

“ Extradition may be sufficiently defined to be the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender. ”

“ Persons liable to extradition vary according to treaties. It is the general practice to surrender on [143] demand of the state in which the crime is committed only those who are subjects of the state making the demand. This is the general rule of the Continental states. As Great Britain and the United States maintain the principle of territorial penal jurisdiction, it is customary for these states to uphold the idea of extradition even of their own subjects. ”

“ After committal for extradition, every prisoner has fifteen days in which to apply for habeas corpus, and after such period, or at the close of the habeas corpus proceedings if they are unsuccessful, the home secretary issues his warrant for surrender, and the prisoner is handed over to the officers of the foreign government. ”

“ Procedure.—To obtain from a foreign country the extradition of a fugitive from the United Kingdom, it is necessary to procure a warrant for his arrest, and to send it, or a certified copy, to the home secretary together with such further evidence as is required by the treaty with the country in question. In most, cases an information or deposition containing evidence which would justify a committal for trial in Great Britain will be required. ”

“ The foundation of extradition between the states is that the accused should be a fugitive from justice from the demanding state, and he may challenge the fact by habeas corpus immediately upon his arrest. If he refute the fact he cannot be removed. ”

“ For obviously, as in substance suggested by England and held by the majority, the proviso means that extradition shall only be granted upon such evidence as according to the laws of the place where the fugitive is found 'would justify his apprehension and commitment for trial, if (the acts constituting) the crime or offence had there been committed.'
V. The court's decision is in direct conflict with the principle governing the interpretation of extradition treaties as propounded by the United States and as declared by this court in Wright v. Henkel, supra. ”

“ 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. ”

“ Rep. 291, 300, it must appear to the governor, before he can lawfully comply with the demand for extradition, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by an indictment or an affidavit, etc., and that the person demanded is a fugitive from the justice of the state the executive authority of which makes the demand. ”

“ 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 ”

“ 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 apply for the delivery up of the kidnapers, but not for the restoration of their victim. It is a special constitutional remedy, addressed by the executive of one state to the executive of another, imposing a constitutional duty of extradition when properly made in a proper case. ”

“ Subject to the provisions of its domestic law and its extradition treaties, the requested Party may, upon being satisfied that the circumstances so warrant and are urgent, and at the request of the requesting Party, take a person whose extradition is sought and who is present in its territory into custody or take other appropriate measures to ensure his presence at extradition proceedings. ”

“ 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. ”

“ The authorities above cited, if applicable to cases of interstate excited, if applicable to cases of interstate extradition, where the forms of law have been that the executive warrant has spent its force when the accused has been delivered to the demanding state; that it is too late for him to object even to jurisdictional defects in his surrender ”

“ It is contended that the constitutional provision for the extradition of persons 'charged with treason, felony, or other crime' requires that the charge must be pending in a court that can try the defendant, and does not include one before a committing magistrate, who can only discharge or hold for trial before another tribunal. ”

“ Treaties shall never be made for the extradition of political offenders, nor for the extradition of those violators of the public order who may have held in the country where they committed the offence the position of slaves; nor agreements or treaties in virtue of which may be altered the guarantees and rights which this Constitution grants to the man and to the citizen. ”

“ Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. The Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.
3. If a Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of any offence to which this article applies. ”

“ The Court then turned to the Extradition Act of 1793, 1 Stat. 302. In the procedures for the regulation of extradition established by that Act, the Court found the same absolute right to demand and correlative obligation to deliver. As to the Governor of the asylum State under the Act, the Court determined that
[t] he duty which he is to perform is . . . merely ministerial — that is, to cause the party to be arrested, and delivered to the agent or authority of the State where the crime was committed. ”

“ Likewise it has been consistently held under the treaties with Great Britain and other countries, that a fugitive from justice may be arrested in extradition proceedings a second time upon a new complaint charging the same crime, where he was discharged by the magistrate on the first complaint or the complaint was withdrawn. ”

“ I refer to the extradition treaty between the Government of the United States of America and the Government of the Republic of India signed today. It is the understanding of the Government of the United States of America that, as a general matter, upon extradition, a person shall be proceeded against or punished under the ordinary criminal laws of the Requesting State, and shall be subject to prosecution or punishment in accordance with the Requesting State’s ordinary rules of criminal procedure. ”

“ The United Kingdom has extradition treaties with practically all civilized foreign countries; and though it is not practicable to state which of the statutory extradition offences are included in each, it may be said generally that crimes 1 to 17 inclusive are covered in all, though Rumania has reserved the right to refuse, and Portugal does refuse, to surrender for a crime punishable with death. ”

“ The inadequacy of the existing engagements for extradition between the United States and Great Britain has been long apparent. The tenth article of the treaty of 1842, one of the earliest compacts in this regard entered into by us, stipulated for surrender in respect of a limited number of offenses. Other crimes no less inimical to the social welfare should be embraced and the procedure of extradition brought in harmony with present international practice. ”

“ Good faith toward foreign powers, with which we have entered into treaties of extradition, does not require us to surrender persons charged with crime in violation of those well-settled principles of criminal procedure which from time immemorial have characterized Anglo-Saxon jurisprudence. Persons charged with crime in foreign countries, who have taken refuge here, are entitled to the same defenses as others accused of crime within our own jurisdiction. ”

“ The man, if captured, must usually be tried in a higher court than the domestic relations court; if convicted he is likely to be more severely punished. Extradition means expense to the state; it is usually difficult, moreover, to get an active interest taken in extraditing a family deserter who, to the legal eye, has committed an offense neither against the person nor against property, and cannot therefore be a serious offender! ”

“ The principle that crime should be tried and punished where committed stands in the way of the trial of a culprit who has escaped to another country. But for mutual protection most of the civilized nations have treaties for the extradition of criminals. The United States have extradition treaties with over twenty countries. ”

“ Extradition only applies to foreigners, not to citizens. The preliminary chapter is followed by the classification of offences according to the importance of the punishments the law assigns to them. The lowest degree of offence is denominated “contravention.” It applies mainly to the pettiest offences, or to infractions of police regulations, and can be punished by fine or by imprisonment under a week, or by both fine and imprisonment, limited to a week. ”

“ If a person whose extradition is sought is being proceeded against or is serving a sentence in the Requested State, that State may temporarily surrender the person to the Requesting State solely for the purpose of prosecution. The Requested State may also postpone the extradition proceedings until its prosecution has been concluded and any sentence imposed has been served. ”

“ But the Justice is not authorized to give a trial by jury, nor is the examination provided for in that act, free from any of the objections which are raised against the act of 1850. The judicial functions exercised by the comissioner in the extradition of fugitives from labor, are not essentially different from those exercised by the Executive of the State in the extradition of fugitives from justice. ”

“ Article 32
⁠After receiving the letter of request for extradition and the accompanying documents and material, the Higher People's Court shall, without delay, make a decision to arrest the person for extradition, where normal extradition may be impeded if such a measure is not taken. Where the measure of arrest for extradition is not taken against the person sought, a decision for residential surveillance shall be made without delay. ”