of citizens of foreign countries are similarly protected throughout the whole domain of the United States.5

Fifth. Stipulations in treaties which have been made with foreign powers, giving their consuls jurisdiction in the United States over certain specified cases, which, in the absence of such stipulations, would be within the jurisdiction of Federal and State courts, and this notwithstanding the general rule that it is illegal for any foreign power to establish any court in the United States."

Sixth. Treaties permitting the United States to establish Consular Courts administered by rules which are not necessarily in accordance with the provisions and the limitations of the Constitution of the United States and which have jurisdiction over American citizens in foreign lands.

§ 432. Wide extent of treaty-making power exercised in regard to Extradition, but from its frequent occurrence no longer a matter of comment.-It has been said that treaties cannot provide for anything repugnant to the Constitution, but the Constitution provides that all powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people,1 and certainly the exercise of the police power is reserved to the States. Officers of the United States, however, acting under United States statutes which are based exclusively upon treaty provisions, can arrest in, and extradite from, the territory of a State any person whom the Executive sees fit to deliver to a foreign power pursuant to stipulations in our treaties with that power.

The treaty-making power has been extended to its widest limits in extradition treaties, but so accustomed have the people become to its exercise in this particular form that the extradition of a fugitive from justice does not appear to be an extraordinary exhibition of power. It is only through the medium of the treaty-making power, however, that fugitives from justice, seeking an asylum in this country, can be sur

rendered to the government of the foreign country whence they have escaped.2

2 Chapter III of Spear on Extradition, pp. 26 to 41, is devoted to the consideration of the extent of the treaty power of the United States in connection with extradition treaties. Numerous notes are cited in regard to the effect of treaties upon the Bills of Rights as they existed in the States, and he says:

"Mr. Lawrence, in the letter above referred to, suggests the inquiry 'whether extradition, either with or without treaty, is consistent with Magna Charta or the bills of right, as incorporated into the organic laws of all the States of the Union, and which declare, in terms more or less precise, that no member of the State can be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or by the judgment of his peers.'

"The first remark in regard to this query is that the bills of rights, referred to, relate only to those who are citizens of a State, and, consequently, have no application to the extradition of persons who are not such citizens.

"A second remark is that whether the extradition of a citizen, under the stipulations and authority of a treaty, is or is not consistent with State bills of rights, is not a material question, since the Constitution makes all treaties of the United States a part of the supreme law of the land,' and, as such, superior to any State constitution or State law. It gives to the President the treaty power: and if he makes extradition treaties with the advice and consent of the Senate, and if such treaties are not repugnant to the Constitution itself, then they are a part of this supreme law.' Anything in State constitutions inconsistent therewith would not displace the authority and operation of these treaties, but the treaties would render such constitutions null and void to the extent of the inconsistency. The treaties would not yield to the constitutions, but the latter would yield to the former. (Ware vs. Hylton, 3 Dall. 199; Owings vs. Norwood's Lessee, 5 Cranch, 344; Fairfax's Devisee vs. Hunter's Lessee, 7 Cranch, 603; and Worcester vs. The State of Georgia, 6 Pet. 515.)

เ

"A third remark is that the rights secured by State bills of rights in behalf of citizens have no relation whatever to the subject of extradition conducted and regulated by the authority of the United States. Such bills of rights are simply designed to protect the citizen against usurpations and abuses of power by State authority, and, hence, they furnish him no protection against any proceeding which is authorized by the Constitution of the United States. He cannot take an appeal from the latter to the former or supersede the latter by the former. The latter is 'the supreme law' as to his rights.

"Conclusion. The conclusion, derivable from this survey of the subject, is that extradition treaties come fully within the scope of the treaty power as given to the President, subject to the qualification of the Senate's approval by the requisite majority, and that there is nothing in any part of the Constitution which excludes such treaties from

There is no statute of the United States, or of any State, providing for, or permitting, the extradition of, any citizen

the exercise of the power. The doctrine is well settled in this country that it is only through such treaties that extradition can be had at all. The whole question, therefore, as to extradition, as to the making of treaties for this purpose, as to the crimes that shall be enumerated, as to the terms upon which mutual delivery shall be granted, and as to the nations with which the treaties shall be made, is, by the Constitution, submitted to the sound discretion of the President, subject to the limitation imposed by the power of the Senate." Spear's Law of Extradition, pp. 38-39.

John Jay while Secretary of Foreign Affairs for the Confederation, and who afterwards performed the duties of Secretary of State of the United States pending the arrival of Thomas Jefferson, and who then became Chief Justice, in a report which is found in vol. 1 of the Diplomatic Correspondence of 1783-1789, page 113, and which is referred to at length in vol. 1, p. 25 of Moore on Extradition, considered that the question was a very serious one, and in the particular case held that the demand made by the French Government need not be acquiesced in because Longchamps, the fugitive in question, had committed a crime in the United States and was already in jail therefor; subsequently when the point was submitted to him as to whether the officers of the Confederation should make a demand upon Great Britain for a fugitive of the United States who had escaped into Canada he expressed his opinion that the United States would not be able to deliver up such an offender and thought that under the circumstances, as no reciprocal favor could be shown if the circumstances should be reversed, that the request should not be made.

3 Extradition is now regulated in the United States by the Revised Statutes, all the laws which had been passed prior to 1878 having been incorporated into §§ 5720, et seq., of the Revised Statutes. See marginal notes of Revised Statutes for prior statutes.

For the extradition laws as they existed up to June 6, 1900, and as amended on that day see opinion in Neely vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, HARLAN, J., quoted in full in note A. to § 107, vol. I, pp. 178, et seq.

See also all of the laws relating to extradition collected in the first volume of Moore on Extradition in which the changes by amendments are carefully noted and explained and the cases involving construction of the statutes collected and annotated.

4 Chapter III, of Moore Extradition, vol. I, is entitled, Extradition a National Act. The first paragraph is as follows:

"§ 44. Constitutional doctrine in the United States. It may be regarded as settled doctrine that, in the United States, the extradition of fugitives from the justice of foreign countries is a subject within the exclusive control of the national government, under its constitutional power of conducting foreign intercourse and of making treaties. The question has by no means been free from controversy, and has never been act

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of the United States to any foreign country in the absence of treaty provisions providing therefor, and it has been practically settled that the Executive of the United States has no power to deliver a fugitive from justice to a foreign government in the absence of such a statute or of treaty stipulations expressly providing for such surrender; it has, however, been decided within the present year by the Supreme Court that Congress has the constitutional power to provide for the surrender of a fugitive from justice to the authorities of territory under the military occupation of the United States in the absence of a treaty stipulation.

No effort will be made to cover the subject of extradition in the few sections and pages of this chapter which can be devoted to the subject. The power to enter into the treaty

ually decided by the Supreme Court of the United States. But, as the respective powers of the Federal and the State governments have in course of time been more clearly defined, there has been developed a general consensus of judicial and executive opinion that the States do not possess the power to surrender fugitive criminals to foreign gov ernments. So that, if the question were actually to come before the Supreme Court for decision, the result could scarcely be regarded as doubtful." On page 75 Moore refers to the provisions in the treaty with Mexico of December 11, 1861, as being the only instance "in which the power has been conferred by the Federal government, either by law or by treaty, upon the authorities of a State or Territory of the United States, to practice extradition with foreign countries." (See Treaty for the Extradition of Criminals, from Justice, with Mexico, concluded December 11, 1861; ratifications exchanged May 20, 1862; proclaimed June 20, 1862. U. S. Treaties and Conventions, edition 1889, p. 698; U. S. Treaties in Force, edition 1899, p. 407.)

The laws which have at various times been passed by States in regard to extradition are there reviewed by Mr. Moore and cases cited under which fugitives were arrested; many of their laws were passed in aid of United States proceedings. For cases affecting New York and Vermont Statutes, see § 19, vol. I, of this work, pp. 34, et seq.; and cases there cited: People ex rel. Barlow vs. Curtis, N. Y. Ct. of Appeals, 1872, 50 N. Y. 321, CHURCH, Ch. J., and Holmes vs. Jennison, U. S. Sup. Ct. 1840, 14 Pet. 540; Ex parte Holmes, Sup. Ct. Vermont, 1840, 12 Vt. 631, WILLIAMS, Ch. J.

See also In re Washburn, N. Y. Ct. of Ch. 1819, 4 Johns. Ch. 106, KENT, Chan.

5 See next section which is devoted to this branch of the subject. See the act of June 6, 1900, quoted at length in opinion in Neely vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, HARLAN, J., and which is given in full as note A. to § 107, vol. I, pp. 178, et seq.

and to enforce it is the only branch of the subject which is properly within the scope of this work. The method of enforcing those treaties and the procedure thereunder must be found in the books which are exclusively devoted to that branch of international law; in the succeeding sections and

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7 AUTHORITIES ON EXTRADITION.

MOORE ON EXTRADITION AND INTERSTATE RENDITION.

A Treatise on Extradition and Interstate Rendition. With Appendices containing the Treaties and Statutes relating to Extradition; the Treaties relating to the Desertion of Seamen; and the Statutes, Rules of Practice, and Forms, in force in the several States and Territories, relating to Interstate Rendition. By John Bassett Moore, Third Assistant Secretary of State of the United States; Author of a work on "Extra Territorial Crime," of a report on Extradition to the International American Conference, etc. In two volumes. Boston, The Boston Book Company, 1891.

SPEAR ON THE LAW OF EXTRADITION.

The Law of Extradition, International and Interstate. With an Appendix, containing the Extradition Treaties and Laws of the United States, the Extradition Laws of the States, several sections of the English Extradition Act of 1870, and the Opinion of Governor Cullom. By Samuel T. Spear, D. D., author of "The Law of the Federal Judiciary;" "The Constitutionality of the Legal Tender Acts," etc. Second edition. Albany, Weed, Parsons & Co., 1884.

WHARTON'S DIGEST OF INTERNATIONAL LAW.

Sections 268-282, vol. II, pp. 744-832, 2d edition, are devoted to the subject of extradition.

CLARK'S LAW OF EXTRADITION (English).

A Treatise upon the Law of Extradition. With the Conventions upon the Subject existing between England and Foreign Nations, and the Cases decided thereon. By Sir Edward Clarke, Knt., Her Majesty's Solicitor General; formerly Tancred Student of Lincoln's Inn. Third edition. London, Stevens and Haynes, 1888.

F. J. KIRCHNER; L'EXTRADITION (French): FUGITIVE OFFENDERS

(English).

L'Extradition; Recueil Renfermant in extenso tous les Traités conclus jusqu'au 1er Janvier, 1883, entre les Nations Civilisées, et donnant la solution précise des difficultés qui peuvent surgir dans leur application; avec une préface de Me Georges Lachaud, avocat à la Cour D'Appel de Paris; Publié sous les auspices de M. C. E. Howard Vincent, Directeur des Affaires Criminelles de la Police Métropolitaine de Londres; Membre de la Faculté de Droit et de la Société Générale des Prison de Paris; avec le Concours Bienveillant du Corp Diplomatique, par F. J. Kirchner, Attaché à la Direction des Affaires Criminelles. London, Stevens and Sons, Chancery Lane, 1883.

Fugitive Offenders; Being the Law and Practice relating to Offenders