BURDEN OF PROOF

[§ 318 in varying form provided that an act of such a kind, directed against the life of the sovereign or head of a foreign State, or a member of his family, should not be deemed to be of a political character. No cases have yet arisen where pursuant to such a provision the United States has been called upon to surrender an assassin whose victim has belonged to one of the classes enumerated.2

§ 318. Burden of Proof.

(c)

American authority indicates clearly that when evidence offered before a committing magistrate tends to show that the offenses charged against the accused are of a political character, the burden rests upon the demanding government to prove the contrary.3 Furthermore, it becomes the duty of the magistrate to pass upon the evidence presented as to the political character of the acts committed. From his decision there is no appeal save to the Secretary of State. In all cases, whatsoever be the nature of the defense, he exercises the right to review the decision of a magistrate committing the prisoner to await extradition.

1

6

See, for example, Art. III, treaty with Russia, March 16, 1887, Malloy's Treaties, II, 1528; Art. IV, treaty with Belgium, Oct. 26, 1901, id., I, 106; Art. IV, treaty with Guatemala, Feb. 27, 1903, id., Í, 881; Art. III, treaty with Spain, June 15, 1904, id., II, 1714; Art. III, treaty with El Salvador, April 11, 1911, Charles' Treaties, 108.

Concerning the so-called attentat clause in the Belgian Law of 1856, see Oppenheim, 2 ed., I, § 335.

See, also, Julian W. Mack, 1909, Proceedings, Am. Soc. of Int. Law, III, 144, 151-152, citing the Swiss cases of Jaffai, Entscheidungen des Schweizerischen Bundesgerichtes, XXVII, 52, and of Malatesta, id., XVII, 450; also § 852 (2) of the Russian Law on Extradition, sanctioned by the Czar Dec. 15, 1911, Rev. Droit Int., 2 ser., XIV, 187, 188.

2 Concerning correspondence with Great Britain in 1865, and the Papal States in 1866, respecting the surrender to the United States of persons involved in the assassination of President Lincoln, see Moore, Extradition, I, § 208, p. 308, note No. 4, citing Dip. Cor. 1865, Part I, 386; id., Part II, 142; id., 1866, Part II, 121–125. See also Moore, Dig., IV, 352–353.

3 Morrow, J., In re Ezeta, 62 Fed. 972, 999, quoting with approval recommendation of International American Congress of 1890; Mr. Sherman, Secy. of State, to Mr. Romero, Mexican Minister, Dec. 17, 1897, For. Rel. 1897, 408, 413, 414, Moore, Dig., IV, 340, 346; Commissioner Moores, Proceedings, Lynchehoun Case, 124-125. See, also, Julian W. Mack, 1909, Proceedings, Am. Soc. of Int. Law, III, 144, 153–155; and compare J. R. Clark, Jr., id., 96-102.

Such was the position taken by Judge Morrow, in the Ezeta Case, and by Commissioners Moores and Foote, respectively, in the Lynchehoun and Rudovitz cases.

5 Ornelas v. Ruiz, 161 U. S. 502. The situation would be otherwise, however, in the fanciful case where, irrespective of the testimony offered, it should appear from the allegations of the complaint that extradition of the accused was sought in order to prosecute him for a political offense, and the decision of the committing magistrate was adverse to the contentions of the prisoner. 6 J. R. Clark, Jr., 1909, Proceedings, Am. Soc. of Int. Law, III, 95, 114-118.

(4)

Nationals

(a)

§ 319. Of the Country of Refuge.

In negotiating extradition treaties the United States has oftentimes sought the omission of a common provision exempting a contracting party from the duty to surrender its own nationals." The attempt has, however, rarely been successful; in most instances the United States has been obliged to accept the restriction. With respect to treaties containing no restriction, such as those with Switzerland of November 25, 1850, and with Italy of March 23, 1868, the United States has uniformly contended that by reason of the general terms employed, the contracting

1 Mr. Fish, Secy. of State, to Mr. Delfosse, Belgian Minister, Aug. 11, 1873, For. Rel. 1873, I, 84; Mr. Gresham, Secy. of State, to Mr. Bartleman, No. 110, June 11, 1894, MS. Inst. Venezuela, IV, 304, Moore, Dig., IV, 288; Mr. Olney, Secy. of State, to Mr. Ransom, Minister to Mexico, Dec. 13, 1895, For. Rel. 1895, II, 1008, 1009, Moore, Dig., IV, 289.

Declared Mr. Blaine, Secy. of State, to Baron Fava, Italian Minister, June 23, 1890: "But the chief object of extradition is to secure the punishment of crime at the place where it was committed, in accordance with the law which was then and there of paramount obligation. It is for this purpose that extradition treaties are made, and, except in so far as their stipulations may prevent the realization of that design, they are to be executed so as to give it full effect. It is at the place where the offense was committed that it can most efficiently and most certainly be prosecuted. It is there that the greatest interest is felt in its punishment and the moral effect of retribution most needed. There, also, the accused has the best opportunity for defense, in being confronted with the witnesses against him; in enjoying the privilege of cross-examining them; and in exercising the right to call his own witnesses to give their testimony in the presence of his judges. These and other weighty considerations, which it is not necessary to state, have led what I am inclined to regard as the great preponderance of authorities on international law at the present day to condemn the exception of citizens from the operation of treaties of extradition." For. Rel. 1890, 559, 566, Moore, Dig., IV, 290, 296. See, also, admirable statement in Moore, Dig., IV, 287.

2 The existing treaties with Great Britain and Italy contain no restriction. The convention with France of Nov. 9, 1843, was similarly free, and likewise that with Switzerland of Nov. 25, 1850. Later conventions, however, with France of Jan. 6, 1909, and with Switzerland of May 14, 1900, expressly removed any obligation to surrender citizens. According to Art. III of the treaty with the Argentine Republic of Sept. 26, 1896, Art. VII of that with Japan of April 29, 1886, and Art. IV of that with Mexico of Feb. 22, 1899, it is provided in differing form that while the contracting parties are not bound to surrender their respective citizens, each party ("the executive authority of each", in the Mexican treaty) shall have the power to deliver them up, if in its discretion it should be deemed proper to do so.

See Case of Mattie D. Rich, an American citizen, arising under the Mexican treaty, For. Rel. 1899, 497-501, Moore, Dig., IV, 303; also Case of Yoshitaro Abe, a Japanese subject extradited from Japan to Hawaii, For. Rel. 1908, 512-515.

OF A THIRD COUNTRY

[$ 320 parties undertook to surrender their respective nationals. The highest court of Switzerland acquiesced in 1891 in the American interpretation of a treaty with that State, as it appeared that such was the clear understanding of the parties when the agreement was concluded.2 Italy, however, has always asserted that its treaty with the United States imposed no duty on the former to surrender its own subjects. It has emphasized the fact that by the Italian penal code in force at the time of the negotiation of the treaty, and ever since in force, "the extradition of a citizen is not admissible. The United States, on the other hand, has contended that the circumstances attending the negotiation indicate a different understanding by both parties. Notwithstanding the divergence of views, the United States has not treated the Italian practice as a breach of the contractual obligation requiring abrogation of the treaty. While it has ceased generally to make requisition for Italian subjects, it has not regarded itself as free from the obligation of surrendering its own citizens. On the theory, therefore, that in such matters extradition treaties need not be reciprocal in their operation, Mr. Knox, Secretary of State, in 1910 decided that the United States should surrender to Italy one Charlton, an American citizen, charged with the commission of murder in the territory of that State, and the Supreme Court of the United States, in consequence thereof, declared it to be its duty to recognize the obligation to surrender the accused "as one imposed by the treaty as the supreme law of the land and as affording authority for the warrant of extradition." 5

§ 320. Of a Third Country.

(b)

According to the treaties of the United States, the fact that a fugitive whose surrender is demanded by a contracting party is a national of a third State is not made an obstacle to extradition. The common provision respecting the situation where the sur

1 See Mr. Blaine, Secy. of State, to Baron Fava, Italian Minister, June 23, 1890, For. Rel. 1890, 559, Moore, Dig., IV, 290.

2 Case of Piguet, 1891, Entscheidungen des Schweizerischen Bundesgerichtes, XVII, 85-91. A translation of the major portion of the opinion is contained in Moore, Dig., IV, 298-300.

3Baron Fava, Italian Minister, to Mr. Blaine, Secy. of State, April 20, 1890, For. Rel. 1890, 555.

4 Memorandum of Mr. Knox, Secy. of State, Dec. 9, 1910, re Porter Charlton, For. Rel. 1910, 654. See, also, Ex parte Charlton, 185 Fed. 880, 886-887.

Charlton v. Kelly, 229 U. S. 447, 476.

render of one person is sought by several states simultaneously, never creates a preference in favor of a demanding country to which the fugitive may owe allegiance. This emphasizes the unimportance of his nationality except in so far as he may be a citizen of the State of refuge.2

The United States does not question the right of a foreign State to surrender to another an American citizen whose extradition from the former has been demanded. This is true even where the State of refuge, according to its own laws, habitually surrenders fugitives in the absence of extradition treaties, upon a stipulation of reciprocity to a demanding government. The energies of the Department of State appear to be confined to the effort to secure for the accused the enjoyment of all rights which are applicable to extradition cases in the country where the fugitive is apprehended, and upon which the demand for surrender is made.5

(5)

§ 321. Irregular Recovery of Fugitive.

Oftentimes by processes bearing no resemblance to extradition, the fugitive is returned to the country from which he has fled and

1 It is usually provided that extradition shall be granted to the State whose demand is first received, provided that the government from which extradition is sought is not bound by treaty to give preference otherwise. See, for example, Art. XI of the treaty with Peru, Nov. 28, 1899, Malloy's Treaties, II, 1448. According to Art. VIII of the treaty with Uruguay, March 11, 1905, the fugitive is to be surrendered to that State in which he shall have com mitted the gravest crime, Malloy's Treaties, II, 1828. Compare Art. X treaty with France, Jan. 6, 1909, Charles' Treaties, 36.

See, also, Mr. Marcy, Secy. of State, to Mr. Gadsden, Minister to Mexico, No. 54, Oct. 22, 1855, MS. Inst. Mexico, XVII, 54, Moore, Dig., IV, 305.

2 As the existing treaty with Mexico (Feb. 22, 1899) contemplates the surrender of American citizens, under circumstances specified in Art. IV, and also provides in Art. XII for the subsequent surrender to a third Power, of a person who has been given up, an American citizen surrendered by the United States to Mexico, might, under the conditions specified, be later surrendered by Mexico to a third State.

3 Moore, Extradition, I, § 143; Mr. Uhl, Acting Secy. of State, to Mrs. Jewitt, April 13, 1894, 196 MS. Dom. Let. 350, Moore, Dig., IV, 306.

Declared Mr. Bacon, Acting Secy. of State, to Ambassador White, April 3, 1907: "Precisely the same rule obtains in the United States where the surrender of citizens or subjects of a third government is demanded. The diplomatic representative of such government has sometimes made representations to this department with a view to the protection of its national; but the department has always considered that his legitimate functions are limited to safeguarding the fugitive's rights by observing the course of the proceedings so as to satisfy himself that all the forms of law have been complied with before extradition is granted." For. Rel. 1907, I, 425.

See documents relative to the extradition of F. L. Jacobs, an American citizen, to the Argentine Republic from France. For. Rel. 1907, I, 411-430. 5 Mr. Wilson, Third Assist. Secy. of State, to Mr. Jacobs, May 25, 1907, For. Rel. 1907, I, 428.

IRREGULAR RECOVERY OF FUGITIVE

[§ 321 is there sought to be prosecuted criminally. Thus he may be abducted from foreign territory by agents of the State of prosecution. In such event the State whose territory has been invaded may demand the return of the individual, or the extradition of those who removed him from its domain. When the fugitive is taken from the State of refuge by its own citizens or by persons under its control, and by them placed within the territory of the State from which he has fled, there is no reason for interposition on the part of the former.2 In an important case, that of the British Indian Savarkar, which became the subject of adjudication before a Tribunal assembled at the Hague, it was held that the arrest and restoration to the British mail steamer Morea at Marseilles July 7, 1910, by a French police officer, of the fugitive who had escaped from that vessel where he was in custody while en route to India for prosecution on account of political offenses, did not impose upon the British Government a duty to restore him to France. It was declared that while it appeared that the French officer was not aware of the nature of the charges against the prisoner, and so made a mistake in giving him up, there was, nevertheless, no bad faith on the part of the British authorities who participated in the matter, and no violation of the sovereignty of France; and that under the circumstances there was no rule of international law imposing a duty upon Great Britain to surrender Savarkar.3

Whatever be the right of the State from which he has been withdrawn, the prisoner is not entitled to his release from custody

1 Moore, Dig. IV, 330, citing Instructions of the Department of State to the American Minister at Madrid, Aug. 18, Sept. 12, Sept. 16, and Dec. 8, 1891, and March 24, 1892, MS. Inst. Spain, XXI, 54, 65, 91; also despatch No. 216, of March 5, 1892, from the American legation at Madrid, 124 MS. Despatches, from Spain; also Mr. Foster, Secy. of State, to Mr. Washburn, Minister to Switzerland, July 27, 1892, For. Rel. 1894, 649, 650, Moore, Dig., IV, 330. Compare Mr. Seward, Secy. of State, to Lord Lyons, British Minister, June 6, 1863, MS. Notes to Great Britain, X, 67, Moore, Dig., IV,

329.

2 Mr. Adams, Secy. of State, to Mr. Jackson, Jan. 24, 1822, 19 MS. Dom. Let. 248, Moore, Dig., IV, 328; also facts in Ex parte Wilson, 140 S. W. 98. In the Case of Antonio Martinez, kidnaped in Mexico by a Mexican, brought into the United States and prosecuted in California, the Department of State was of the opinion that after having surrendered to Mexico one Felix, the kidnaper, the United States was under no obligation to comply with the demand of Mexico for the surrender of Martinez as well. It was observed that as the latter was being prosecuted by the State of California, the Federal Government felt itself unable to secure his release from custody. For. Rel. 1906, II, 1121-1122.

3 Award of the Court of Arbitration, Feb. 24, 1911, in J. B. Scott, Hague Court Reports, 276, also in Am. J., V, 520. See also editorial comment, id., V, 208; Oppenheim, 2 ed., I, § 332, and periodical literature there cited.