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Moreover, by Article. IK of the treaty and Article VIII of the law of 1870, extradition may not be granted for an offense if prescription have run according to the laws of the country to which the requisition is addressed. It is therefore necessary that the documents submitted in support of an application for extradition show that prescription, according to the laws of the Grand Duchy, has not run. The laws of the Grand Duchy in the matter of prescription are:

"637. The criminal and the civil actions resulting from a crime incurring the penalty of death or of perpetual punishment, or from any other crime carrying a corporal or ignominious penalty, shall become prescribed after the passage of 10 years, counting from the day of the commission of the crime, if during that time no act of prosecution or of judicial inquiry have been made.

'If during that time there have been initiated acts of prosecution or judicial inquiry, upon which no judgment have been rendered, the criminal and civil actions shall not become prescribed until the passage of 10 years from the last of these acts, even for those not implicated in such acts of prosecution or judicial inquiry.

"638. In the two cases for which provision is made in the preceding article, and following the distinctions of epochs therein established, the duration of prescription shall be reduced to the passage of three years, if it be a matter of a nature to be punished correctionally."

Prescription of penalties inflicted is fixed by Article XCI of the penal code at 20 years from the date of the decree or the judgment in cases of crimes and at 5 years in cases of correctional punishments. In case of an escaped prisoner, prescription, dating from the day of his escape, will run as above, save that in cases of crime the period of 20 years shall be reduced by whatever portion of his sentence the prisoner shall have served beyond 5 years, and in case of a correctional punishment the period of 5 years shall be reduced by whatever portion of his sentence the prisoner shall have served beyond 2 years.

GRANTING OF EXTRADITION.

Article VII of the treaty of extradition provides that, the preliminary formalities having been completed, "the proper authority in Luxemburg may then issue a warranr for the apprehension of the fugitive, in order that he may be brought before the propet judicial authority for examination." If it should then be decided that, according to the law and the evidence, the extradition is due pursuant to the treaty, the fugitive may be given up according to the forms presented in such cases. The formal request for extradition, coming through the proper diplomatic channel, is accompanied by documents in support thereof to which consideration has already been given in this report. These are addressed to the minister of state, President of the Government of the Grand Duchy, charged with its foreign affairs. By his office the documents are examined to ascertain whether they are in proper form, duly authenticated, emanating from proper authorities and, in general, in conformance with the provisions of the treaty. In case of doubt upon any of these points the ministry for foreign affairs of the Grand Duchy is expected to resolve them before proceeding further in the matter. Finding the documents submitted in support of the request for extradition in good order, the minister of state, who is chief of the department of justice, transmits them to the attorney general, who is charged with examining the documents from the point of view of the law of the Grand Duchy, as well as from the point of view of their legal regularity according to the law of the United States.

If the attorney general find the documents in order, in his judgment, the accused is then interrogated and given an opportunity to evade the formalities of extradition. Should he avail himself of this opportunity, his declaration of his intention so to act is signed in duplicate by the prisoner and attested by the administrator of prisons. The extradition of the fugitive then becomes voluntary, and the fugitive is therefore delivered, with one of the duplicates of the declaration, to the agent empowered to receive him.

If, however, the fugitive desire to pass through the regular process of formal examination, the attorney general sends the request for extradition with its accompanying documents to the chamber of arraignment of the superior court of the Grand Duchy and calls upon that body to give its opinion thereon.

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Article II of the law of 1870 provides that "extradition shall be granted * only after an opinion of the chamber of arraignment of the superior court of justice. "The hearing shall be public, unless the fugitive demand a trial behind closed doors. The prosecuting attorney and the fugitive shall be heard. The latter may avail himself of counsel.

"Within a fortnight dating from the receipt of the documents they shall be returned, with an opinion for which the reasons are given, to the director general of justice,

who shall pronounce a decision in conformity with a deliberation taken by the Government in council.

"Extradition may not be granted save in conformity with the opinion pronounced by the chamber of arraignment.

"As for foreigners, authorized by grand ducal decree to establish in the Grand Duchy, their extradition may not be granted until 'this decree shall have been rescinded.'"

From this it will be seen that in the Grand Duchy of Luxemburg, however, essential to the granting of extradition an opinion in that sense pronounced by the chamber of arraignment of the superior court may be, it is actually the executive power which has the deciding judgment in matters of extradition, acting upon the opinion expressed by the judiciary. This judicial investigation, though it have nothing whatever to do with the guilt or innocence of the prisoner, must examine into those questions of nationality, identity, and sufficiency of the proofs of criminality which have already been discussed. In cases of doubt as to nationality, as has previously been stated, the civil courts of the Grand Duchy are alone empowered to decide the

matter.

The force of the provision of the law of 1870, quoted above, which declares that extradition may not be granted save upon the advice of the chamber of arraignment, is to bind the Government, which has the deciding power, to refuse extradition should the decision of the chamber of arraignment be unfavorable, while not binding it to grant extradition should the judicial decision be favorable thereto. The reason for this peculiar provision has ceased to exist, but it remains the law of the Grand Duchy. Another practical effect, however, evolves therefrom. As the opinion of the chamber of arraignment is not a judgment of court, but an advice given for the guidance of the executive portion of the Government, it need not be made public. It may therefore be communicated to the Government, with its reasons, without being communicated to the prisoner. In this way, should it seem to the Government of the Grand Duchy that the country seeking the extradition may alter, improve, strengthen, or withdraw its application for extradition, the opinion of the chamber of arraignment of the Grand Duchy may be communicated to the diplomatic agent of the country seeking the extradition of the prisoner for appropriate action in view of this opinion.

The decision to grant extradition having been reached by the Government and pronounced by the director general of justice, extradition is decreed in the following

form:

The Minister of State, President of the Government.
In view of the request of the

LUXEMBURG.

Government looking to obtain the extradition of one [name, surname, date and place of birth, occupation, and nationality], charged with

In view of the law of March 13, 1870, on the extradition of foreign criminals, as well as law of October 29, 1883, approving the treaty of extradition between the Grand Duchy and the United States of America;

In conformity with the opinion of the chamber of arraignment of the superior court of justice;

The attorney general having been heard;

After due deliberation of the Government in council

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ART. II. This decree shall be sent to [the diplomatic representative of the Government seeking extradition] and to the attorney general, who is charged with its execution.

(Signed)

MINISTER OF STATE, PRESIDENT OF THE GOVERNMENT.

The execution of this decree should follow immediately upon its issue. The fugitive must be escorted to the frontier of the Grand Duchy at a point indicated by the Government seeking his extradition, where he must be delivered to the agent of the latter. If he should escape and again return to the Grand Duchy no further formalities are necessary than to advise the authorities of the Grand Duchy to have him again delivered in the same way to the agent of the Government seeking his extradition.

Express provisions are made in the treaty for the payment of the expenses of arrest, detention, and transportation of fugitives and for the disposition of articles, found in their possession, which may have been obtained through the commission of acts with which they may be charged.

TRANSIT.

The matter of transit of the territory of the Grand Duchy by a fugitive from the justice of a second country whose extradition has been granted by a third country is regulated by Article III of the law of 1820, which reads as follows:

"Extradition by way of transit of the grand ducal territory may, nevertheless, be granted without taking the opinion of the chamber of arraignment on the simple production, in original or in authenticated copy, of one of the documents of procedure mentioned in the preceding article when it shall have been sought by a foreign State of another foreign State, each bound with the Grand Duchy by a treaty including the offense which has given rise to the extradition and when said transit shall not have been forbidden under the terms of Articles VII and VIII of this law."

The transit of a fugitive across Luxemburg territory must be in the custody of Luxemburg police agents, who will receive the fugitive at a point indicated and deliver him at a point indicated to the authorized agent of the Government claiming the fugitive, or in case of local laws in the country at whose frontiers the fugitive is to be delivered, to the agents of the border country, who will in turn deliver him to the country from whose justice he is a fugitive.

Owing to the geographical situation of the Grand Duchy the matter of transit in taking a fugitive from the Grand Duchy is more complicated. It is impossible to pass from the Grand Duchy without crossing the territory of either Belgium, France, or the German Empire; indeed, if the most practical and convenient route be taken, by way of Hamburg or Bremen, Holland must also be crossed.

As regards Belgium, Article IV of the law of 1874 makes the following provision, very similar to that of the Grand Duchy quoted above:

"ART. 4. Extradition by way of transit across Belgian territory may, nevertheless, be granted without having received the opinion of the chamber of indictments on the simple production of the original or of an authenticated copy of one of the instruments of procedure mentioned in the foregoing article when it shall have been requested for a State with which Belgium has a treaty comprising the offense which gives rise to the demand for extradition and when it shall not be interdicted by article 6 of the law of October 1, 1883, and article 7 of this law."

As regards France, Mr. Vignaud, in 1889, reported that

"The French Government grants the right of transit across its territory of criminals surrendered by another Government. Usually this favor is obtained through the diplomatic representative of the demanding Government, who is expected to state that the criminal extradited is not a Frenchman, and that his crime is not political, but one at common law. The transit is made in the custody of French agents.'

I am ignorant of the German law in regard to transit of the territory of the German Emperor.

Practically it has been found that the production of at least a certified copy of the warrant of arrest is necessary to secure the transit of a fugitive across the territory of any of these countries. Some arrangement should be made with one or all of them to facilitate the transit of fugitives from justice whose extradition has been granted by the Grand Duchy.

File No. 23700/39.

Chargé Bailly-Blanchard to the Secretary of State.

AMERICAN EMBASSY,
Paris, July 30, 1910.

SIR: In compliance with the department's instruction No. 122, I have the honor to send herewith a copy of the letter and inclosure which I addressed to Minister Beaupré at the Hague, with reference to the transit through France of a fugitive from the justice of the United States whose extradition has been granted by the Government of Luxemburg.

I have, etc.,

A. BAILLY-BLANCHARD.

[Inclosure.]

Chargé Bailly-Blanchard to Minister Beaupré.

AMERICAN EMBASSY,

Paris, July 30, 1910. SIR: Acting under instructions from the Department of State I have the honor to send you herewith a copy of an extract from the treaty of extradition between France and Luxemburg as far as relates to the question of transit. When Mr. Paxton Hibben, secretary of your legation, was in Paris I fully explained to him the requirements and method of procedure in case of transit through France. For your information I will repeat what I said to Mr. Hibben.

In order that transit be granted through France of a fugitive from the justice of the United States whose extradition has been granted by the Government of Luxemburg it is necessary that a formal demand be made to the foreign office through this embassy, accompanied by either the original or an authenticated copy of the order of arrest or other document upon which the extradition was granted by the Government of Luxemburg. Transit is only allowed by the French Government under the same conditions that extradition would have been allowed.

Further, when transit is granted the prisoner will be taken to the frontier by the Luxemburg authorities, who will deliver him to the French authorities, and by the latter the prisoner will be taken to the port in France decided upon and there handed over to the American official duly authorized to receive him.

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SIR: I have the honor to report that on receipt this morning of the department's cable instruction of June 16 I called at the foreign office to inquire what decision had been reached concerning the change of date of the International Conference on Maritime Law suggested by me in my note of May 30 last, copy of which I inclose. It was decided while I was there to issue circulars to the Governments interested, naming September 12 as the date for the meeting of the conference, which information I am now cabling to the department.

I have, etc.,

CHARLES PAGE BRYAN.

The Acting Secretary of State to the American Delegation.1

DEPARTMENT OF STATE, Washington, August 23, 1910. GENTLEMEN: You are informed that the International Conference on Maritime Law will reconvene at Brussels on September 12 next, and you are instructed to proceed to that capital accordingly and resume your participation in its sessions and deliberations. If you deem it advisable to do so, you are authorized to arrange for preliminary consultation with your British colleagues, in order that those

1 Walter C. Noyes, chairman; Charles C. Burlingham, A. J. Montague, and Edwin W. Smith. For report of American delegates, see Foreign Relations, 1911."

principles of law affecting the subjects submitted to the conference which are common to the jurisprudence of America and England may be invoked, if possible, with the weight which would naturally result from agreement between the American and British representatives. Considering the conventions approved by the conference and referred to the several Governments

I. The convention for the unification of certain rules in the matter of collision

The most important point is found in that part of Article IV which provides that in cases of collision with mutual fault damages to cargo shall be apportioned in proportion to the fault "without solidarity,' the rule so stated being at variance with the Harter Act of February 13, 1893 (27 Stat., 445), which, as construed by the Supreme Court, relieves the carrying ship from liability for damages to cargo in such cases, but allows the noncarrying ship to recover contribution from the carrier. The reservation as to the effect of national laws in the last paragraph of Article IV relates only to persons on board, and the question arises whether the provsion of Article X that the convention shall "not affect the nature and extent of shipowners' liability as they are regulated in each country," preserves the Harter Act, which must be regarded as defining the settled policy of the United States respecting both the relief of carrying ships from direct responsibility and their indirect responsibility for injury to cargo. The department is inclined to think that the language of Article X sufficiently guards and preserves the Harter Act and all the various exemptions, liabilities, and rights thereunder as established by the decisions, but out of abundance of caution you are hereby instructed to procure the insertion in the protocol of an explicit reservation on the subject on behalf of the United States. The precise form of such reservation is committed to your judgment with the following suggestions: The Maritime Law Association of the United States, in a resolution adopted at a meeting held in New York on January 28, 1910, approving the convention in general, has proposed the following form of condition to be inserted in the protocol:

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* * That Article X of this convention shall be understood as reserving all rights given by the statute of the United States of February 13, 1893 (27 Stat., 445), entitled "An act relating to the navigation of vessels, commonly known as the 'Harter Act."

Various exporting interests have, however, opposed the convention on the theory that the combined effect of Articles IV and X is greatly to impair the cargo-owner's rights and protection, for since he can not sue the carrying ship under the Harter Act, and Article IV of the convention will not permit him to recover from the stranger ship more than the proportion of its share of responsibility he will have to bear a large part of the loss himself, and where the noncarrying ship is not in fault the entire loss will fall on him. It is urged in this connection that the result would be that cargo owners would have little protection and insurance rates would increase so as to be almost prohibitive. It seems clear to the department that in preserving 'shipowners' liability," as regulated in each country, Article X em braces noncarrying as well as carrying vessels "as they are regulated in" this country, and that the liability of both would be unaffected by the provisions of Article IV; in other words, that so far as this country is concerned Article X practically nullifies Article IV.. Never

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