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In the United States v. Davis, 2 Sumner's U. S. Circ. Ct. Rep., 482, it is said, upon principles of international law, and independent of statute or treaty, that courts of justice are neither bound nor authorized to remand prisoners for trial to a foreign government whose laws they are said to have violated. See, also, 1 Opinions of U. S. Attorneys-General, p. 510; 2 Id., p. 359.

And in the Matter of Henrich, 5 Blatchford's U. S. Circuit Court Rep., 414; Ex-parte Henrich, 10 Cox's Criminal Cases, 626, it is said, that it should seem indispensable that a demand for the surrender of the fugitive should be first made upon the executive authorities of the government, and a mandate of the President obtained, before the judiciary is called upon to act. That at all events, this would be the better practice, and one in keeping with the dignity to be observed between nations in such delicate and important transactions.

That an executive order of surrender to a foreign government is purely a national act, is not open to controversy; nor can it be doubted that this executive act must be performed through the Secretary of State, by order of the President. But it does not follow that Congress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender. In re Kaine, 14 Howard's U. S. Sup. Ct. Rep., 103. The original arrest may be made by the executive, or, if the statute so provide, it may also be made by the court or the examining magistrate. Dana's Wheaton, § 115, note 73.

In the Commonwealth v. Deacon, (10 Sergeant & Rawle's Rep., 125,) it was held, that in the absence of an extradition treaty, no State magistrate, upon a charge by a private person, can cause a fugitive from a foreign country to be arrested for a crime committed in that foreign country, in order to afford an opportunity to the executive of the United States to deliver him up to the government of that country.

See, in this connection, the note to Article 216.

Preliminary investigation.

218. Before making the arrest or surrender of an alleged fugitive from justice, the nation from which it is asked may determine for itself, upon a preliminary investigation, whether it is presumptively established that the person charged has committed the offense, as defined by this Code; or, in the case of a convict, that he has wrongfully escaped punishment.

It was held, in the Matter of Metzger, (5 N. Y. Legal Observer, 83; see, also, 1 Barbour's New York Rep., 248, and 5 Howard's U. S. Sup. Ct. Rep., 176,) that the test of what constituted the crime is the law of the coun try which demands the fugitive, not that of the nation upon which the demand is made. In Dana's Wheaton, (§ 117, note 75, p. 186,) it is said, that the Extradition Acts are restricted to the cases which have the essential and substantial elements of the offenses specified, and according to

the law of both countries; and the mere fact that an act which, according to the general law of either counntry, has not the character of a particular offense, is treated as such by the law of one of them, does not bring a case within the treaty. We must assume that the terms employed are used in a sense common to both parties to the treaty.

Compare Re Windsor, (6 Best & Smith's Q. B. Rep., 522,) where it was held that the enumeration of crimes in the extradition treaty refers to such acts as amount to any of those offenses, according to the law of England and the general law of the United States, and does not comprise offenses which are only such by the local legislation of some particular State of the American Union; and Re Tivnan, (5 Best & Smith's Q. B. Rep., 696,) where piracy was taken as understood according to the law of the United States rather than the law of nations.

Rules for conducting investigation.

219. The proceedings for the arrest of an alleged fugitive from justice, and the judicial investigation of the charge, must be conducted according to the rules established for similar preliminary proceedings, before the same courts or magistrates, in the case of a person charged with the commission of a like offense within the country.

Clarke, (Extradition, p. 99,) states the rules for the conduct of the investigation as follows, in the case of a demand in extradition upon Great Britain:

The prisoner being apprehended and brought before a magistrate, three things are necessary: 1. The identity of the prisoner must be proved; 2. Such evidence of criminality must be given as, according to the laws of the place where he has been found, would justify his apprehension and commitment for trial if the crime or offense had been there committed. Some evidence upon this point is necessary in the first instance, but the magistrate has the usual powers of remand, if it be not sufficient for commitment; 3. The magistrate must be satisfied, either upon the facts of the case or by the evidence of a foreign lawyer, that the offense charged comes within the definition of the crime contained in the treaty. This evidence must be taken in the prisoner's presence, in the usual way. The evidence of criminality, however, may consist, either wholly or in part, of copies of depositions taken by a judge or competent magistrate in the country claiming the fugitive."

"If, on examination, the magistrate finds that the acts are not disputed, but that a justification is established antecedent to, and independent of, the acts themselves, he must discharge the prisoner." Id., 105.

In order to enable a justice of the peace to issue his warrant under the statute, 6 and 7 Vict., c. 76, § 1, for the apprehension and committal for trial of an accused person, it need not appear that there was an original warrant for his apprehension in the United States, or depositions taken against him there; and the warrant of such justice of the peace need not

allege that the evidence before him was taken under oath. In re Tivnan, 5 Best & Smith's Q. B. Rep., 645.

A French warrant for the apprehension of an accused person in Great Britain is necessary in order to procure his extradition under 6 and 7 Vict., c. 76; but it need not be signed by a judge or competent magistrate, and need only be authenticated as made in such manner as would justify the arrest of the accused person in France.

A person condemned par contumace in France continues to be an accused person, liable to be delivered over under the Extradition Acts. In re Coppin, 2 Law Rep., (Chancery Appeals,) 47.

In the United States it is held, that the application for an order of arrest must conform to the requirements of the domestic law. Matter of Farez, 7 Abbott's Practice Reports, New Series, (New York,) 84. Also, that the question of remanding the prisoner for further examination, and the time of remanding, and the determination of the magistrate as to whether the crime is proved, and the case is within the treaty, are matters of purely judicial determination, not subject to appeal, or to executive interference, or revision. Matter of Metzger, 5 Howard's U. S. Sup. Ct. Rep., 176; 6 Opinions of U. S. Attorneys-General, p. 91; 10 Id., 501.

The attorneys for the government in the United States are not charged with any duties in reference to the judicial inquiry instituted, before ordering an extradition. The minister or agent of the government making the requisition employs such counsel as he pleases, if any are necessary. 9 Opinions of the U. S. Attorneys-General, p. 246.

Documentary evidence.

220. Evidence of the commission of a crime by the accused may consist, either wholly or in part, of original depositions, properly authenticated, conformably to the laws of the country where they were made, so as to entitle them to be received for similar purposes by the tribunals or magistrates of such country; or, of exemplified copies, certified by the foreign court or magistrate, or proved, by oath, to be true copies of original depositions.

Such depositions or copies must be certified, as provided in Part VI. of this Code, entitled ADMINISTRATION OF JUSTICE, or by the minister of justice or chief executive officer of the demanding nation, or by the principal diplomatic or consular officer of the nation upon which the demand is made, resident in such foreign country: to be legally authenticated according to the laws of the demanding nation, in the manner

which would entitle them to be received in evidence, for similar purposes, by its tribunals or magistrates.

Act of Congress of August 12, 1848, § 2, 9 U. S. Stat. at L., 302; Act of Congress of June 22, 1860, § 1, 12 U. S. Stat. at L., 84; 10 Opinions of U. S. Attorneys-General, p. 501; Matter of Metzger, 5 New York Legal Observer, 83; In re Coppin, 2 Law Rep., (Chancery Appeals,) 47; Correspondence of British and French Governments, Accounts and Papers, 1866, vol. LXXVI., (38.)

The complaint upon which the warrant of arrest is asked should set forth clearly, but briefly, the substance of the offense charged, so that the court can see that one or more of the crimes enumerated in the treaty is alleged to have been committed. This complaint need not be drawn with the formal precision and nicety of an indictment for final trial, but should set forth the substance and material features of the offense. In re Henrich, 5 Blatchford's U. S. Circuit Ct. Rep.. 414; Ex-parte Henrich, 10 Cor's Criminal Cases, 626; 2 Abbott's National Digest, 509, note; Matter of Farez, 7 Abbott's Pr. Rep. N. S., 84.

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The affidavit which charges the crime is defective if the witness only swears to his belief. . . . Suspicion does not warrant a commitment, and all legal intendments are to avail the prisoner. The return is to be most strictly construed in favor of liberty. Ib.

The court can regard only the facts set forth in the affidavit as having any legal existence. Any misrecitals and overstatements in the requisition and warrant, which are not supported by the affidavit, cannot be received as evidence to deprive a citizen of his liberty, and transport him to a foreign State for trial. Ex-parte Smith, 3 McLean's U. S. Circuit Court Rep., 121.

The affidavit upon which a warrant of arrest is to issue for the extradition of a fugitive, must state distinctly that the fugitive has committed a crime, and that he committed it in the State from which the requisition comes; for no foreign State can entertain such a jurisdiction of crimes committed in another State as to entitle it to make requisition for the criminal on a third State. Ex-parte Smith, 3 McLean's U. S. Circuit Court Rep., 121.

Each piece of documentary evidence offered by the agents of the foreign government in support of the charge of criminality, should be accompanied by a certificate of the principal diplomatic or consular officer of the United States resident in the foreign country from which the fugitive shall have escaped, stating clearly that it is properly and legally auhenticated, so as to entitle it to be received in evidence in support of the same criminal charge, by the tribunals of such foreign country. In re Henrich, 5 Blatchford's U. S. Circuit Ct. Rep., 414; 2 Abbott's Nat. Dig., 509, note; 10 Cox's Criminal Cases, 626.

The parties seeking the extradition of the fugitive should be required by the commission to furnish an accurate translation of every document offered in evidence which is in a foreign language, accompanied by an affi

davit of the translator, made before him or some other United States commissioner or judge, that the same is correct. Ib.

Public officers should furnish authenticated copies of documents in their custody, when demanded, and should assist in bringing forward tes timony, according to the duties of their several stations; and individuals should not refuse to give testimony. 1 Opinions of U. S. Attorneys-General, p. 82.

The commissioner before whom an alleged fugitive is brought for hearing, should keep a record of all the oral evidence taken before him, taken in narrative form, and not by question and answer, together with the objections made to the admissibility of any portion of it, or to any part of the documentary evidence, briefly stating the grounds of such objections, but should exclude from the record the arguments and disputes of counsel. In re Henrich, 5 Blatchford's U. S. Circ. Ct. Rep., 414; 2 Abbott's Nat. Dig., 509, note; 10 Cox's Criminal Cases, 626.

As to the necessary authentication of depositions under the English statutes to carry into effect the extradition treaties with France, see Re Coppin, 2 Law Rep., (Chancery App.,) 47; and the Correspondence between the French and English Governments on this point, in Accounts and Papers, 1866, vol. LXXVI., (38.) See reviews of this controversy, in a paper by Mr. Westlake, in Transactions of National Association for Promotion of Social Science, 1866, p. 144, and in a report by Mr. Picot, Bulletin de la Societé de Legis. Comp., Mai, 1869, p. 56.

Necessary proof of guilt.

221. The extradition of an alleged fugitive from justice, under this Section, can be made only when the fact of his commission of the offense is so far established that the laws of the country making the extradition would justify apprehension and commitment for trial, if the crime had been there committed.

This provision is contained in nearly all the American treaties. Mere suspicion is no ground for a requisition of a fugitive from a foreign nation. The law of nations requires that evidence, clear and positive, shall be furnished. 1 Opinions of U. S. Attorneys General, p. 509.

The proof should be in all cases not only competent, but full and satisfactory, that the offense has been committed by the fugitive in the foreign jurisdiction-sufficiently so to warrant a conviction, in the judgment of the magistrate, of the offense with which he is charged, if sitting upon the final trial and hearing of the case. No magistrate should order a surrender short of such proof. Er-parte Kaine, 3 Blatchford's U. S. Circ. Ct. Rep., 1.

A letter from the foreign minister resident here, asking for the preliminary process for extradition of an alleged fugitive criminal, accompanied by a warrant of arrest of the accused, purporting to be issued on due inquiry and evidence, by competent judicial authority in the foreign nation

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