has been brought to this country. In the cases cited in the previous section the prisoners objected to the method of their

Ex parte Ross, U. S. Dist. Ct. | motion to discharge denied; points Ohio, 1869, 2 Bond, 252, Fed. Cases, of practice reviewed. First arrest 12,069, LEAVITT, J. Questions of held to be insufficient, but second practice and evidence discussed and arrest sustained. prisoner remanded.

Ex parte Van Hoven, U. S. Cir. Ct. Minn. 1876, 4 Dillon, 412, Fed. Cases, 16,658, NELSON, J. 4 Dillon, 415, DILLON, J. Prisoner having been discharged and re-arrested not be reviewed on habeas corpus. For additional cases see p. 404, post.

deportation from this country. They were able to do this because the courts had jurisdiction to protect their personal rights. When fugitives from this country are surrendered to the authorities abroad they have the same right to test the validity of the surrender before the courts of the country surrendering them. After they have reached this country they have no right to demand their discharge because the proceedings were illegal in the other country. If, however, they are brought here under treaty stipulations they can only be tried for the offence for which they have been surrendered. The history of the controversy over this question between this country and Great Britain and referred

Prisoners were discharged and the appeal of the Mexican Consul therefrom dismissed.

In re Ezeta, U. S. Dist. Ct. Cal. 1894, 62 Fed. Rep. 964 and 972 (2 cases), MORROW, J. The right of a government to demand the extradition of political prisoners or of persons offending against military law discussed at length in this case which was somewhat complicated by the fact that the prisoners had taken refuge on a naval vessel of the United States and were thus brought to this country. § 437.

embezzlement, a crime not included in the Hawaiian Treaty, fled to Honolulu and on request of the United States Minister was surrendered and brought back to California. On habeas he contended he could only be held for an extraditable offence, and that his extradition was improper, the crime not being included in the treaty list. Held that under those circumstances it was presumed that the Hawaiian Government surrendered him from comity and not under treaty. The prisoner was remanded. The right of the government to surrender

1 See English statute cited in without a treaty was discussed and note 1 to § 436, p. 261, ante.

2 Ex parte Foss, Sup. Ct. Cal. 1894, 102 Cal. 347, DE HAVEN, J. Petitioner under indictment for

sustained.

See also Ker vs. Illinois, cited in note 9 to this section.

3 United States vs. Rauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, MILLER, J. As this is probably the most important extradition case decided by the Supreme Court, extended reference will be made to it at this point.

The opinion is lengthy, reviewing many conflicting decisions of Federal and State courts; the points decided are stated in the syllabus as follows:

"Apart from the provisions of treaties on the subject, there exists no well defined obligation on one independent nation to deliver to another fugitives from justice; and though such delivery has often been made, it was upon the principle of comity. The right to demand it

to in the notes is too long to be told in a brief review of the power of extradition, and the principle is now so well

has not been recognized as among the duties of one government to another which rest upon established principles of international law.

"In any question of this kind which can arise between this country and a foreign nation, the extradition must be negotiated through the Federal government, and not by that of a State, though the demand may be for a crime committed against the law of that State.

"With most of the civilized nations of the world with which the United States have much intercourse, this matter is regulated by treaties, and the question now decided arises under the treaty of 1842 between Great Britain and the United States, commonly called the Ashburton Treaty.

"The defendant in this case being charged with murder on board an American vessel on the high seas, fled to England, and was demanded of the government of that country, and surrendered on this charge. The Circuit Court of the United States for the Southern District of New York, in which he was tried, did not proceed against him for murder, but for a minor offence not included in the treaty of extradition; and the judges of that court certified to this court for its judgment the question whether this could be done. Held:

"(1) That a treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice, and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.

"(2) That, on a sound construction of the treaty under which the defendant was delivered to this country, and under the proceedings by which this was done, and acts of Congress on that subject, Rev. Stat. secs. 5272, 5275, he cannot lawfully be tried for any other offence than murder.

"(3) The treaty, the acts of Congress, and the proceedings by which he was extradited, clothe him with the right to exemption from trial for any other offense, until he has had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offence specified in the demand for his surrender. The national honor also requires that good faith shall be kept with the country which surrendered him.

"(4) The circumstance that the party was convicted of inflicting cruel and unusual punishment on the same evidence which was produced before the committing magistrate in England, in the extradition proceedings for murder, does not change the principle."

As to the right of extradition except under treaties the opinion says (pp. 411, 412):

"Not only has the general subject of the extradition of persons charged with crime in one country, who have fled to and sought refuge in another, been matter of much consideration of late years by the ex

4 For note 4 see p. 272.

settled that the subject is now one of historical rather than legal interest. The lower courts decided the point differecutive departments and statesmen of the governments of the civilized portion of the world, by various publicists and writers on international law, and by specialists on that subject, as well as by the courts and judicial tribunals of different countries, but the precise questions arising under this treaty, as presented by the certificate of the judges in this case, have recently been very much discussed in this country and in Great Britain.

"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. Prior to these treaties, and apart from them, it may be stated as the general result of the writers upon international law, that there was no well-defined obligation on one country to deliver up such fugitives to another, and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked; and it has never been recognized as among those obligations of one government towards another which rest upon established principles of international law. "Whether in the United States, in the absence of any treaty on the subject with a foreign nation from whose justice a fugitive may be found in one of the states, and in the absence of any act of Congress upon the subject, a State can, through its own judiciary or executive, surrender him for trial to such foreign nation, is a question which has been under consideration by the courts of this country without any very conclusive result."

Numerous cases are then reviewed including In re Washburn, 4 Johns. Ch. 106; Short vs. Deacon, 10 Sarg. & R. 125; Holmes vs. Jennison, 14 Peters, 540; Ex parte Holmes, 12 Vermont, 631; People vs. Curtis, 50 N. Y. 321.

"The question has not since arisen so as to be decided by this court, but there can be little doubt of the soundness of the opinion of Chief Justice Taney, that the power exercised by the governor of Vermont is a part of the foreign intercourse of this country, which has undoubtedly been conferred upon the Federal government; and that it is clearly included in the treaty-making power and the corresponding power of appointing and receiving ambassadors and other public ministers. 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.

"At this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal government to deal with all such international questions exclusively, it can hardly be admitted that, even in the absence of treaties or acts of congress on the

ently on different occasions as appears by the decisions cited in the notes, but when the point reached the Supreme Court subject, the extradition of a fugitive from justice can become the subject of negotiation between a state of this Union and a foreign government.

"Fortunately, this question, with others which might arise in the absence of treaties or acts of congress on the subject, is now of very little importance, since, with nearly all the nations of the world with whom our relations are such that fugitives from justice may be found within their dominions or within ours, we have treaties which govern the rights and conduct of the parties in such cases. These treaties are also supplemented by acts of Congress, and both are in their nature exclusive."

Then follows a review of the text-books on the subject of extradition and the exact definition of what treaties are when made under the authority of the United States, citing numerous cases on pp. 418 and 419. After referring to the various statutes in regard to extradition, including sections 5272, 5275, Rev. Stat. U. S., the court says:

"The obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United States, is that the party shall not be delivered up by this government to be tried for any other offence than that charged in the extradition proceedings; and that, when brought into this country upon similar proceedings, he shall not be arrested or tried for any other offence than that with which he was charged in those proceedings, until he shall have had a reasonable time to return unmolested to the country from which he was brought. This is undoubtedly a congressional construction of the purpose and meaning of extradition treaties such as the one we have under consideration, and whether it is or not, it is conclusive upon the judiciary of the right conferred upon persons brought from a foreign country into this under such proceedings.

"That right, as we understand it, is that he shall be tried only for the offence with which he is charged in the extradition proceedings and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition."

The opinion then reviews several decisions as follows: United States vs. Caldwell, 8 Blatchf. 131; United States vs. Lawrence, 13 Blatchf. 295; Adriance vs. Lagrave, 59 N. Y. 110; United States vs. Watts, 8 Sawyer, 370; Ex parte Hibbes, 26 Fed. Rep. 421; Commonwealth vs. Hawes, 13 Bush. 697; Blandford vs. State, 10 Texas Ct. Appeal, Criminal Cases, 627; State vs. Vanderpool, 39 Ohio 273.

After commenting upon the fact that these cases were conflicting, the opinion says (pp. 429-430):

"Upon a review of these decisions of the Federal and State courts, to which may be added the opinions of the distinguished writers which

5 For note 5 see p. 273.