Part II. § 117. The Ash burton Treaty. in watching German subjects on Swiss soil, were expelled from Switzerland, on the ground that by their actions and conduct they had disturbed the peace in that country. Germany protested, and was supported by Russia and Austria, and, in the more recent incident, by Italy. It was urged, on the German part, that Switzerland had no right to avail herself of the protection of her neutrality to further, by toleration and support in her territory, acts against a friendly neighbour which, in the case of another State, might lead to rupture and war. The Federal Government replied that its neutrality does not diminish its sovereign rights, but seemed disposed to seek legislative aid to the end that it might itself better control foreigners residing in Switzerland (m). By Art. X. of the treaty concluded at Washington on the 9th August, 1842, between the United States and Great Britain, it was "agreed that Her Britannic Majesty and the United States shall, upon mutual requisitions by them or their ministers, officers, or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within the territories of the other :provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed; and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates respectively, to the end that the evidence of criminality may be heard and considered; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the (m) Annual Register, 1888. Times, May, June, July, 1889. proper executive authority, that a warrant may issue for Chap. II. the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive." § 117a. The construction of this treaty has given rise to some difficulties. It Construction has been held that piracy in it does not include piracy jure gentium, but of this treaty. is confined to piracy by municipal law. As pirates jure gentium can be tried anywhere, it was considered that there was no need to give them up (n). In another case the Lord Chief Justice said, "We must assume that the terms employed are used in a sense which they would have in the law of both countries, and not in a sense wholly peculiar to some local law in one of them." And, therefore, where certain acts were made forgery by the law of New York, but did not amount to forgery in England, or by the general law of the United States, the fugitive accused of such acts was not delivered up (o). If the evidence presents several views of the case, on any one of which, if adopted, there may be a conviction, it has been held in Canada that the prisoner may be extradited (p). It has also been determined in Canada that the extradition treaty contains the whole law of surrender between the United States and Canada (q). The offence must also have been committed within the jurisdiction of the country demanding the surrender of the fugitive. In 1858, Thomas Allsop, a British subject, was charged as an accessory before the fact to the murder of a Frenchman in Paris, and escaped to the United States. He could have been tried for this in England (r), but the law officers held that his surrender could not be demanded from America under the treaty, since he was not charged with a crime committed within British jurisdiction (s). But where a person was charged with murder on the high seas, on board a British ship, this was held to be within British jurisdiction, and the prisoner was accordingly surrendered by the United States (t). In 1870, an Extradition Act was passed in England (u), which pro- Extradition § 117b. vides inter alia, that "A fugitive criminal shall not be surrendered to Act, 1870. (n) In re Tirnan, 5 B. & S. 643; 10 L. T. N. S. 449. Cockburn, C. J., dissented from the opinion of the majority. See also the case of The Chesapeake, Parl. Papers, N. America, No. 10 (1876), p. 37. (0) In re Windsor, 6 B. & S. 527; In re Trueman Smith, 4 Upper Canada Practice Rep. 215. As to murder, see Anderson's case, Ann. Reg. 1861, p. 520. As to construction of treaty with France, see The Lennie Mutineers, Parl. Papers, N. America, 1876 (No. 1), p. 97. (p) R. v. Gould, 20 Upper Canada C. P. 154. (2) R. v. Tubbee, 1 Upper Canada Prac. Rep. 98. (r) 24 & 25 Vict. c. 100, s. 9; and 24 & 25 Vict. c. 94, s. 1. (8) Forsyth, Cases and Opinions on Constitutional Law, p. 368. And see Opinions of Attorneys-General (U. S.), vol. viii. 215. (t) In re Bennett, 11 L. T. N. S. 488. (u) 33 & 34 Vict. c. 52. See Appendix B. Part II. Case of a foreign State unless provision is made by the law of that State, or (x) 33 & 34 Vict. c. 52, s. 3, sub- (y) Mr. Fish to Col. Hoffmann, Parl. (c) Parl. Papers, N. America, 1876 (d) Old Bailey, 4th May, 1876. Parl. Papers, N. America, 1876 (No. 1), p. 97. See 36 & 37 Vict. c. 60, s. 3. Appendix B. (e) Mr. Fish to Mr. Pierrepont, Aug. 5th, 1876, Parl. Papers, N. America, 1877 (No. 1), p. 5. A Convention between Great Britain and the United States was signed at London, 25th June, 1886. The provisions of Art. 10 of the 1842 Treaty were extended to manslaughter, burglary, embezzlement, or larceny of the value of 50 dollars, or 10%. and upwards, and "malicious injuries to property, whereby the life of any person shall be endangered, if such injuries constitute a crime according to the laws of both" countries. The provisions of the same Art. 10 and of the Convention were to apply to persons convicted of the specified crimes, but whose sentence had not been executed. No fugitive criminal was to be surrendered if demanded in respect of a crime deemed to be of a political character, or if his surrender should be, in fact, demanded with a view to try or punish A case of great interest in this connection was decided by the Chap. II. Supreme Court of the United States in October, 1886. The defendant Rauscher's being charged with murder on board an American vessel on the high Case. seas fled to England, and, on demand, was surrendered on that 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 upon an indictment under § 5347, Revised Statutes, charging him with cruel and unusual punishment of the man of whose murder he was before accused, such punishment consisting of the identical acts proved in the extradition proceedings, but not constituting an offence provided for in the Ashburton Treaty. The judges of the Circuit Court, being divided in opinion, certified to the Supreme Court for its judgment whether this could be done. It was laid down in the opinion of the Court, delivered by Miller, J., in which the cases upon the subject and the opinions of writers are examined and reviewed : 1. That, prior to treaties, and apart from them, there was no welldefined obligation on one country to deliver up fugitives from justice 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 has never been recognized as among those obligations of one government towards another which rest upon established principles of international law. 2. 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. 3. That it is the better opinion that in any question of extradition which can arise between the United States 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 laws of that State. 4. That, on a sound construction of the Ashburton Treaty, and Acts of Congress on the subject, Revised Statutes, §§ 5272, 5275, the defendant could not be lawfully tried for any other offence than murder, because a person who has been brought within the jurisdiction 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 him for a crime of a political character. (Parl. Papers, United States (No. 2), 1888.) But notwithstanding the lastmentioned provision, the ratification of the Convention was refused by the Senate, owing, apparently, to appre W. hensions entertained by certain persons, Part II. Ker's Case. French decision. § 118. Treaty between France and the United States. release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. 5. That the circumstance that the same evidence might be sufficient to convict for the minor offence which was produced before the committing magistrate to support the charge of murder did not justify a departure from the principle of the treaty, the minor charge being an offence for which the treaty made no provision. Gray, J., concurred upon the short ground that by the Act of Congress of 3rd March, 1869, c. 141, § 1 (§ 5275, Revised Statutes), the political department of the government had clearly manifested its will, in the form of an express law, that an accused person should be tried only for the crime specified in the warrant of extradition, and should be allowed a reasonable time to depart out of the United States before he could be arrested or detained for another offence. He expressed no opinion upon the broader question, which he considered a question of comity within the domain of diplomacy. Waite, C. J., dissented. The prisoner having been brought within the jurisdiction was triable there. Whether he ought to be tried for an offence other than that for which he had been delivered was no part of his defence, but a matter for diplomacy. § 5275 of the Revised Statutes only enabled the Federal Government to regain possession of the prisoner if they should desire to keep their faith with Great Britain in respect of the surrender (ƒ). In another case, decided in December of the same year, where the defendant was not surrendered by the government of Peru, to which country he had fled, but was arrested in Peru by the United States messenger of his own mere motion, it was held by the Supreme Court that the case was not cognizable by that Court at all, for the defendant had failed to establish that any treaty with the United States conferred upon him a right of asylum in a foreign country, and the Court, therefore, gave no opinion upon the question whether, having thus been forcibly removed, the prisoner could resist trial in the State Court (g). The French Courts have laid it down as a principle of international law, that a prisoner whose extradition has been obtained cannot be tried for any crimes but those mentioned in the demand for the surrender (h). By the convention concluded at Washington on the 9th November, 1843, between the United States and France, it was agreed: "Art. 1. That the high contracting parties shall, on requisitions made in their name, through the medium of their respective diplomatic agents, deliver up to justice (f) U. S. v. Rauscher, 119 U. S. 407. (g) Ker v. Illinois, 119 U. S. 436; cf. Re Parisot, 5 T. L. R. 344. And for other recent American cases, see Clarke on Extradition (4th ed.), pp. 87-91. (h) Dalloz, Jurisp. Gen. 1874, p. 502. |