and of international law is involved in a case now pending before the Supreme Court. Other cases on this subject are cited in the notes.

Chancellor Kent, however, believed that the power existed as was evidenced in his decision in 1819.

In re Washburn, N. Y. Ct. Chan. 1819, 4 Johns. Chan. 106, KENT, Chan. This was one of the earliest extradition cases and was decided by the Chancellor not so much upon any treaty stipulations or government action as upon his conception of the then existing general law of nations: The points decided as stated in the syllabus are as follows:

"It is the law and usage of nations to deliver up offenders charged with felony and other high crimes, and who have fled from the country in which the crimes were committed, into a foreign and friendly jurisdiction.

"And it is the duty of the civil magistrate to commit such fugitive from justice, to the end, that a reasonable time may be afforded for the government here to deliver him up, or for the foreign government to make application to the proper authorities here for his surrender. But if no such application is made in a reasonable time, the prisoner will be entitled to his discharge.

"The evidence to detain such fugitive from justice, for the purpose of surrendering him to his government, must be such as would be sufficient to commit the party for trial, if the crime had been perpetrated here.

"The 27th article of the treaty of 1795, between the United States and Great Britain, was merely declaratory of the law of nations on this subject; and since the expiration of that treaty, the principles of the general law of nations remain obligatory on the two nations.

"Therefore, the chancellor, or a judge in vacation, has jurisdiction to examine a prisoner before him on habeas corpus, and who has been taken in custody on a charge of theft, or felony, committed in Canada, or a foreign state, from which he has fled; and if sufficient evidence appears against him, to remand him, or if there is not sufficient proof to justify his detention, to discharge him.”

While the Chancellor maintained that the court had jurisdiction to bold him, the prisoner was discharged for want of evidence, and it is stated that the discharge was upon that ground alone.

Dos Santos, Ex parte, U. S. Cir. Ct. Virginia, 1835, 2 Brock. 493; s. c. Fed. Cas. 4016, BARBOUR, J. This was one of the early extradition cases in which the request was made by Portugal that we surrender a criminal. There was no treaty; the question came up whether the United States was under any obligation to deliver the prisoner in the absence of any treaty stipulations and the court held that, as to the government, there was no obligation. The court then discussed the question of whether there was any power on the part of the judiciary to act in relation to this demand, and in holding that it had no such power the opinion in conclusion says (page 513):

"The second question is, whether the judicial officers of the United

5 For note 5 see p. 256.

§ 434. Power of Executive to extradite under treaty but without legislation.—When, however, there is a treaty between the United States and a foreign government, the Executive has power to surrender a fugitive to a foreign gov

States have any authority to act in relation to it? Perhaps the conclusion at which I have arrived on the first point, might render a decision and discussion of the other unnecessary; but as it was argued, and has been considered, and as I may have fallen into error on the first point, I will very briefly notice it. As a general proposition, the judicial power of a government is created for the purpose of executing its own laws. If in deciding upon a foreign contract, the courts of another country construe it according to the law of the place where made, and intended to be executed; as, for example, to give the interest there allowed, this is not the execution of a foreign law; but of the law of the court, which as to this case, adjudges that as the intention of the parties. As to criminal laws, I believe it is settled everywhere that one country will not execute the penal laws of another; not even its revenue laws. So far is this carried in this country, that the courts of one state will not execute the penal laws, either of a sister-state, or of the federal government. . . . "In conclusion, I will say, that the counsel who made this application, has presented it in the strongest light, which the principles of public law or the authorities enabled him to do; yet, after the best reflection which I have been able to bestow upon the subject, in the short time which I have had to consider it, I am of opinion, that, without a treaty stipulation, this government is not under any obligation to surrender a fugitive from justice, to another government, for trial; and that, as a judicial officer of the United States, I have no authority whatsoever, either to arrest or detain, with a view to such surrender. It follows, as a consequence, that the prisoner is entitled to his discharge; and he is discharged accordingly."

declared to have deserted was not completed and, therefore, did not come within the definition of vessel as used in the treaty of 1832 with Russia. It was held that an unfinished vessel might never acquire the character of an actual vessel and that until finished the relator could not be a member of the crew of such a vessel.

United States ex rel. Alexan- | Philadelphia,) from which he was droff vs. Motherwell, Keeper of the Philadelphia County Prison, etc., U. S. Dist. Ct. E. D. Penna. 1900, 103 Fed. Rep. 198, MCPHERSON, J., affirmed on appeal U. S. Cir. Ct. App. Third Cir., 107 Fed. Rep. 437, 1901, DALLAS, J., and GRAY, J., BRADFORD, J., dissenting. An appeal is now pending in United States Supreme Court. In this case the relator who was alleged to be a This decision was affirmed by the deserter from the Russian Naval Circuit Court of Appeals but a new Service was released from custody demand was then brought forward on the ground that the vessel (Rus- by the Russian government, at sian cruiser Variag in process of whose instance the proceedings construction in Cramp's shipyards, were brought, to wit: that the per

ernment, although Congress has not passed any legislation to make the treaty effectual.

Cases of this nature now rarely arise, as the general acts passed by Congress apply to all treaties of extradition,' whether made prior to the date of the statute or subsequently thereto. Before the statute was enacted, however, that question arose on more than one occasion; and on habeas corpus proceedings persons held for extradition claimed that the treaty on which their surrender was sought had not become operative because Congress had failed to enact the legislation necessary to carry it into effect.

The most notable instance in this respect was the famous Nash alias Robins case, in which President Adams surren

1 See note 3 under § 432, p. 247, ante, for statutory provisions in regard to extradition.

mission, given by the Executive the same had not been produced in departments of the United States evidence in the lower courts. Government to Russia, to land a $ 434. company of men who were subsequently to become the crew of the Variag, then being built for the Russian government, was equivalent to permission of an armed force to cross the territory, and that under the rules of international law, jurisdiction over the force remained exclusively in the officers of the army to which permission is given, and that international comity permits and requires the surrender of deserters.

2 United States vs. Nash, alias Robins, U. S. Dist. Ct. So. Car. (about) 1799, Bee's Admr. 266, BEE, J.; Fed. Cas., 16,175.

The statement of the case in Bee's Admiralty is very brief, and is as follows (p. 266):

"The prisoner is brought before me by writ of habeas corpus, from which, and from two affidavits filed One of the justices at the Circuit with the clerk of this court, it Court of Appeals held that this appears that the prisoner is charged view was tenable and the case is with having committed murder on now before the Supreme Court of board of a ship of war belonging the United States and has been ad- to his Britannic majesty, on the vanced for an early hearing (Octo-high seas. Requisition has been ber, 1901). In the Supreme Court made by the British minister that the case appears sub nomine Tucker he be delivered up by virtue of the vs. The United States of America ex rel. Leo Alexandroff. On motion made by the counsel for the Russian government the Supreme Court permitted the correspondence of the State and Treasury Departments to be printed as a part of the record in this case, although

27th article of the treaty of amity between the United States and Great Britain; and as there is sufficient evidence of criminality to justify his apprehension and commitment for trial, and justice may be more fully done if the prisoner be tried where the witnesses reside,

dered one Nash alias Robins, an alleged murderer, and deserter from a British man-of-war, to the British authorities under the extradition provisions in the treaty of 1794. It was purely an executive act as no legislation had been enacted. The surrender was made and the alleged deserter was hanged. Political feeling ran very high at that time, and the action was exceedingly unpopular; the matter subsequently became the subject of a debate in Congress in which John Marshall, then a member of the House of Representatives, took part; it is said that his able defense. of the President in this case was the basis of his subsequent appointment as Chief Justice of the United States, the centennial of which was so fittingly celebrated on the fourth of February, 1901. The author does not altogether credit the truth of this statement, but if it be true, then surely the life, desertion and death of Nash alias Robins was not all in vain. The same question which was discussed in the Robins case has subsequently been decided by the courts, notably in the case cited in a previous chapter in which Justice Levi Woodbury in 1845 remanded the prisoners for delivery, refusing to intervene on their behalf, holding that the provi sions of the treaty with Great Britain of 1842 were selfoperating, and that although Congress had not enacted any legislation as to the procedure for delivery of fugitives pursuant thereto, the provisions of the treaty were sufficiently explicit to enable the Executive Department to act thereunder.3

or their evidence may be better Justice, which was delivered in procured, I do (in consideration of the House of Representatives, in the circumstances, and at the par- regard to the surrender of ticular request of the President Robins. of the United States [Mr. John Adams], order that the prisoner Thomas Nash alias Jonathan Robins, be delivered over by the marshal of this court to Benjamin Moodie, consul of his Britannic majesty, agreeably to the 27th section of the treaty aforesaid."

The report of this case is followed by a full abstract of the speech of John Marshall, afterwards Chief

This case also appears under the title of United States vs. Robins and is reported at great length in Fed. Cas. 16,175.

Following the opinion of the Justice and the speech of Mr. Marshall, there are seventy-one columns of speeches, pamphlets, etc., of the current literature of the day in regard to this case.

& The British Prisoners, U. S. Cir.

§ 435. Power of Congress to extradite in absence of treaty. A third question in regard to the power of the Government in extradition cases is whether, under congressional legislation, a fugitive from justice can be extradited from the United States to a country with which this Government has no treaty relations.

This point has never been decided, as no statute has ever been passed providing for the extradition of a fugitive under such circumstances. The question will permit of a great deal of discussion, but it would necessarily be more or less academic, as the practical case does not exist and it is impossible to discuss the effect or legality of a prospective statute, the exact form and nature of which is necessarily unknown. It has been held that under the general powers and attributes of sovereignty the United States has power to expel, exclude and deport aliens;1 this rule, however, might not be Ct. Mass. 1845, 1 Wood. & Min. 66, | collated in Moore on Extradition WOODBURY, J. Also reported sub and Spear on Extradition, under nomine In re Thomas Sheazle, appropriate headings. See extracts from opinion in this § 435. case in § 374, p. 79, ante.

In re Metzger, U. S. Dist. Ct. S. D. N. Y. 1847, Fed. Cas. 9511. BETTS, J. N. Y. Sup. Ct. 1847, 1 Barbour, 248, EDMONDS, J. U. S. Sup. Ct. 1847, 5 Howard 176, McLEAN, J. See § 374, n. 3, p. 81, ante. In re Kaine, U. S. Sup. Ct. 1852, 14 Howard, 103. This was one of the first cases argued in the Supreme Court as to the power of the court to review by habeas corpus the proceedings of a United States Commissioner committing a prisoner for surrender. The court was divided and no decision was made. Writ denied. There were also three writs of habeas corpus which were heard in the Circuit and District Court and reported in Fed. Cas. 7597, 7597a, and 7598.

Other cases on the necessity of some statutory enactment and compliance therewith, will be found

1 See alien law of 1798, 1 U. S. Stat. at L. p. 570, and the Chinese exclusion and deportation laws cited under § 379, pp. 91, et seq., ante.

Ekiu vs. United States, U. S. Sup. Ct. 1891, 142 U. S. 651, GRAY, J., and see extract from opinion in note 3 c, to § 379, pp. 97, et seq., ante.

Fong Yue Ting vs. United States, U. S. Sup. Ct. 1893, 149 U. S. 698, GRAY, J. See extracts from opinion in this case, in note 3 e, to § 379, pp. 103, et seq., ante.

Lem Moon Sing vs. United States, U. S. Sup. Ct. 1895, 158 U. S. 538, HARLAN, J.

Wong Wing vs. United States, U. S. Sup. Ct. 1896, 163 U. S. 228, SHIRAs, J.

United States vs. Yong Yew, U. S. Dist. Ct. Missouri, 1897, 83 Fed. Rep. 832, ADAMS, J.