for its decision the broad principle was decided and the matter can now be considered as settled.

we have cited in the earlier part of this opinion, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release on trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."

4 Owing to the refusal of the United States to recognize as an obligation of international law the right of a fugitive surrendered under an extradition treaty to be tried only for the offense for which his extradition was asked, the English government refused to surrender fugitives under the treaty of 1842 unless the government would stipulate that they should be tried only for such offense.

This the United States government refused to do. In 1876 the government of the United States demanded the surrender of one Winslow charged with forgery. This was refused, the foreign secretary calling attention to the British extradition act of 1870, which provides that a fugitive shall not be surrendered by the government of Great Britain unless provision is made either by the law of the state receiving the fugitive or by the arrangement that the person surrendered shall not be tried in the foreign state for any offense committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded, until he shall have been restored or had an opportunity of returning to Her Majesty's dominions. (For a full abstract of this law, see Moore on Extradition, vol. 1, pp. 741, et seq.) As no such assurance was given the surrender was refused.

The action of the British government was largely based on the decision in United States vs. Lawrence, U. S. Cir. Ct. S. D. N. Y. 1876, 13 Blatchford, 295, Fed. Cas. 15,573, BENEDICT, J., in which it was held that a fugitive extradited from Great Britain for one offense could be tried for another; at the time the law in the United States on this point was unsettled as no case had reached the Supreme Court and the lower Federal courts and higher State courts had rendered conflicting decl sions, (these are all reviewed in the Rauscher case).

It was not until after the decision of the Supreme Court in United States vs. Rauscher, United States Supreme Court, 1886, 119 U. S. 407, MILLER, J., and referred to in note 3 to this section, p. 268, ante, that it was finally settled that a person extradited could only be tried here for the offence for which he was extradited.

After the decision in the Rauscher case applications were made for the surrender of fugitives by the United States, and the courts of Great Britain held that the decision in that case was declaratory of the law as it was understood in the United States and would be administered

Since the Rauscher decision there have been a number of

by the courts; that the British statute, above referred to, was complied with so far as the United States was concerned, and the custom of surrendering fugitives was thereupon resumed between this country and Great Britain. In 1889 a new treaty was concluded between the United States and Great Britain in which provision was made that surrendered fugitives should be tried only for the offence for which they were extradited; the United States Government has thus recognized the decision in the Rauscher case as a declaration of law binding upon all the departments of the Government. (U. S. Treaties in Force, edition 1899, pp. 259, et seq). As stated by Mr. Moore (vol. I, p. 196): "The only extradition treaty now in force (1888) negotiated since the treaty with Italy of March 25, 1868, which contains no provision in respect of trial for offences other than that for which surrender was granted was that of the Orange Free State of December 22, 1871."

A full account of the correspondence between the United States and Great Britain on this subject will be found in Moore on Extradition, vol. I, chap. 6, pp. 194–280, in which all the cases bearing on this subject are referred to and discussed, including a number of decisions rendered since the Rauscher case was decided, most of which are referred to the following notes to this section.

5 The right to try for offences | cases in which it was held that exother than those in which the pro-tradited criminals could not be ceedings were based was sustained tried for offences not named in the

in

United States vs. Caldwell, U. S. D. C. S. D. N. Y. 1871, 8 Blatch. 131, BENEDICT, J. The doctrine of this case has been completely overruled by the decision in United States vs. Rauscher.

United States vs. Lawrence, U. S. Cir. Ct. S. D. N. Y. 1876, 13 Blatch. 295, Federal Cases 15,573.

treaty or for offences not named in the warrant of extradition until after he had been discharged and permitted to leave the State and voluntarily returned.

Commonwealth vs. Hawes, Ct. App. Ky. 1878, 13 Bush. 697, LINDSAY, Ch. J.

Blandford vs. State, Ct. App. Texas, 1881, 10 Tex. Ct. App. Crim. Cas. 627, Hurt, J.

Adriance vs. Lagrave, N. Y. Ct. App. 1874, 59 N. Y. 110, CHURCH, United States vs. Watts, U. S. Dist. Ch. J., N. Y. Sup. Ct. Gen. Term, Ct. Cal. 1882, 8 Sawyer, 370, HOFF1874, 1 Hun 689, DANIELS, J. MAN, J. The opinion contains These are among the leading cases a lengthy review of the relations on the right to hold prisoners ex-between this country and Great tradited for causes other than those Britain, and is one of the cases respecified in the extradition papers. ferred to in United States vs. Bacharach vs. Lagrave, N. Y. Rauscher. Sup. Ct. Gen. Term, 1874, 1 Hun, 689, DANIELS, J. This case is also reported under the title of Adriance vs. Lagrave. See that case. The following are some of the was held that an extradited person

Ex parte Coy, U. S. Dist. Ct. Texas, 1887, 32 Fed. Rep. 911, TURNER, J. Extradition case prior to the Rauscher case in which it

other decisions involving the same point which are cited in the notes."

could not be tried on any other offence than that for which he was extradited and that until the state court actually attempted to try him the United States courts would not interfere, but would rely upon the state court carrying out the law as it should be.

entitled to have the offence for which he was extradited disposed of and then to depart in peace, and that his arrest on another charge meanwhile was "in abuse of the high process under which he was originally brought into the United States and cannot be sustained." On pages 67-68, the Court says:

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State vs. Vanderpoel, Sup. Ct. of Ohio, 1883, 39 Ohio Rep. 273, JOHN- 'Cosgrove was extradited under SON, Ch. J. This is one of the the treaty, and entitled to all the cases referred to in the Rauscher immunities accorded to a person case, and which took the ground so situated; and it is admitted that that a prisoner extradited could not be held and prosecuted for another crime, and that the provisions of the treaty with Great Britain are part of the law of the land, enforcible by the judicial tribunals of the States in behalf of prisoners detained and prosecuted.

All of these cases are cited and reviewed in the opinion in the Rauscher case just cited.

In re Cannon, Sup. Ct. Mich. 1882, 47 Mich. 481, CAMPBELL, J. This is an interstate rendition case but the court discussed the general laws relating to extradition and discharged the petitioner who had been extradited for one offence, released on bail and arrested in another.

• Cosgrove vs. Winney, U. S. Supreme Ct. 1899, 174 U. S. 64, FULLER, Ch., J.

Cosgrove was extradited from Canada to Michigan and gave bail; before trial he was arrested for another non-extraditable offence. Meanwhile, while under bail, he had returned to Canada and then returned to Michigan voluntarily. On writ of habeas the Court held that under the statute and the treaties with Great Britian he was

the offence for which he was indicted in the District Court was committed prior to his extradition, and was not extraditable. But it is insisted that although he could not be extradited for one offence and tried for another, without being afforded the opportunity to return to Canada, yet as, after he had given bail, he did so return, his subsequent presence in the United States was voluntary and not enforced, and therefore he had lost the protection of the treaty and rendered himself subject to arrest on the capias and to trial in the District Court for an offence other than that on which he was surrendered; and this although the prosecution in the State court was still pending and undetermined, and Cosgrove had not been released or discharged therefrom.

"Conceding that if Cosgrove had remained in the State of Michigan and within reach of his bail, he would have been exempt, the argument is that, as he did not continuously so remain, and, during his absence in Canada, his sureties could not have followed him there and compelled his return, if his appearance happened to be re

It has also been decided that the Federal courts have jurisdiction to prevent a State court from proceeding with the trial of an extradited prisoner for an offence for which he was not extradited."

quired according to the exigency |ing; on habeas and certiorari the of the bond, which the facts stated District Court of the United States show that it was not, it follows that when he actually did come back to Michigan he had lost his exemption.

"But we cannot concur in this view. The treaty and statute secured to Cosgrove a reasonable time to return to the country from which he was surrendered, after his discharge from custody or imprisonment for or on account of the offence for which he had been extradited, and at the time of this arrest he had not been so discharged by reason of acquittal; or conviction and compliance with sentence; or the termination of the state prosecution in any way. United States v. Rauscher, 119 U. S. 407, 433.

released him and allowed him a reasonable time to return to New Jersey, the State whence he was brought by the United States marshal. In re Reinitz, 39 Fed. Rep. 204, distinguished; United States vs. Rauscher, 109 U. S. 407, followed.

Hall vs. Patterson, U. S. Cir. Ct. N. J. 1891, 45 Fed. Rep. 352, GREEN, J. Following U. S. vs. Rauscher, held that an extradited offendant can only be charged in the proceeding in which he was extradited.

People ex rel. Young vs. Stout, N. Y. Sup. Ct. 1894, 81 Hun, 336, BRADLEY, J. A prisoner indicted for two different degrees of assault, one of which was extraditable and the other not, having been extradited and tried and found guilty of the second degree, cannot be held.

"The mere fact that he went to Canada did not in itself put an end to the prosecution or to the custody in which he was held by his bail, In re Reinitz, U. S. Cir. Ct. S. D. or even authorize the bail to be N. Y. 1889, 39 Fed. Rep. 204, forfeited, and when he re-entered | BROWN, J. A person extradited, Michigan he was as much subject | tried and acquitted and rearrested to the compulsion of his sureties immediately on another offense. as if he had not been absent." Held that he could not be arrested

In re Baruch, U. S. Cir. Ct. S. D. | for another offense except that for N. Y. 1890, 41 Fed. Rep. 472, which he was extradited until BROWN, J. Held that a prisoner after a reasonable time had been discharged on habeas corpus from given him after the acquittal to arrest under extradition proceed-enable him to return to the country ings under treaty with Austria, and from which he was brought. who has been brought into the Right of asylum, numerous cases State of New York on the petition of cited. the Austro-Hungarian Consul, cannot be arrested in a civil suit in a New York State court for embezzlement of the same funds involved in the extradition proceed

7 In re Mineau, U. S. C. C. Vt. 1891, 45 Fed. Rep. 188, WHEELER, J. Proceedings against man in jail for other offense.

On the other hand, the Supreme Court has held that when a person, charged with crime, has been brought within the jurisdiction of a State from a foreign country in treaty relations with the United States by means other than the surrender by the government of that country on requisition of the United States, made pursuant to treaty stipulations, the United States will not interfere with the trial in the State courts, notwithstanding such proceedings would be irregular

8 Ker vs. State Illinois, U. S. Sup. Ct. 1886, 119 U. S. 436, MILLER, J. The plaintiff in this case is the same as the petitioner in habeas proceedings in the Circuit Court of the United States for the Northern District of Illinois, In re Kerr, 18 Federal Reporter, 167.

After his discharge had been refused by the Judge of the Circuit Court he was tried and convicted and sued out a writ of error from the Supreme Court basing the writ upon the effect of the question involved in the right of a State court to try a prisoner brought from Peru but not in accordance with the extradition treaty.

On the criminal trial the prisoner had set up that he had been improperly extradited as a plea in abatement which, on a demurrer had been overruled.

The plaintiff in error contended that the removal from Peru was practically unlawful and unauthorized and therefore in direct violation of the extradition treaty.

The court held that it was not an effective question to determine that point, as the State court had exclusive jurisdiction in regard thereto, because if not extradited under the treaty, jurisdiction was not conferred upon the United States Courts.

In this respect the court says (pages 441-444):

"This view of the subject is presented in various forms and repeated in various shapes, in the argument of counsel. The fact that this question was raised in the Supreme Court of Illinois may be said to confer jurisdiction on this court, because, in making this claim, the defendant asserted a right under a treaty of the United States, and, whether the assertion was well founded or not, this court has jurisdiction to decide it; and we proceed to inquire into it.

"There is no language in this treaty, or in any other treaty made by this country on the subject of extradition, of which we are aware, which says in terms that a party fleeing from the United States to escape punishment for crime becomes thereby entitled to an asylum in the country to which he has fled; indeed, the absurdity of such a proposition would at once prevent the making of a treaty of that kind. It will not be for a moment contended that the government of Peru could not have ordered Ker out of the country on his arrival, or at any period of his residence there. If this could be done, what becomes of his right of asylum?

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'Nor can it be doubted that the government of Peru could of its own accord, without any demand from the United States have surrendered