Return.

208. Foreign convicts or accused persons, paupers, and persons suffering from mental alienation or from other maladies which give them the right to public relief, who enter a nation, may be sent back by it to the nation of which they are members, at any time while the legal liability or the state of dependence continues, and before they have acquired the national character of the nation into which they have entered.

The declaration between France and Bremen, Oct. 20, 1866, (9 De Clercq, 620,) which contains such a provision as to insane, &c., requires each nation to reimburse the expenses of the return of such persons, as well as the expenses occasioned by the sojourn and treatment of its own members in the asylums of the other.

The treaty between France and the Swiss Confederation, June 30, 1864, (9 De Clercq, 91,) provides that the members of one nation established in the other, who shall be sent back by legal sentence, or according to the laws or regulations of police respecting morals or mendicity, shall be received at all times with their families in the country of their origin, &c. By the treaty between the United States and the Swiss Confederation, Nov. 25, 1850, (11 U. S. Stat. at L., 587, Art. III.,) each nation is bound to receive back its members, with their wives and legitimate issue, who have preserved their rights according to its laws, in case they desire to return, or are sent back by judicial decision or act of police, according to the laws regulating morals and mendicity.

Obtrusion of convicts, paupers, &c.

209. No nation has a right to obtrude persons, such as are mentioned in the last article, upon another nation, or aid or encourage such to emigrate to another nation.

Persons entering a nation contrary to this article, may not only be sent back by it to the nation offending, at the expense of the latter, but the nation aggrieved is entitled to redress for the unfriendly act.

This article is suggested by a letter from Dr. Francis Lieber, (dated September 4, 1869,) to the Secretary of State of the United States, in reference to the obtrusion of Convicts. His conclusions are thus stated:

66

In my opinion, we stand in need of three things:"

First, the foul character of the transaction must be openly acknowl edged and plainly laid down in the law of nations, which, doubtless, has not been done long ago, because the offense has never before, so far as I know, presented itself so strikingly as in our times of emigration, which

resemble, though peaceful, the period of migration of nations, which was warlike."

We ought to stipulate by treaties (the reverse of extradition treaties) with the other governments of our family of nations, that every attempted importation of convicts shall be considered as a grave offense against the law of nations, and a most "unfriendly act," calling for serious remedies; and the writers on the law of nations ought soon to lay down the fair and simple principle in their works. This is one of the ways in which the law of nations advances, and has so nobly advanced in the last hundred years. I have never failed to touch on this principle in my lectures on this the greatest branch of law."

"Secondly, we stand in need of a law of the United States by which it is made penal to introduce convicts into our territory, both for the captain commanding the importing vessel, and by a high fine imposed on the owners of the same; and by which law provision is made that the imported convicts be exported again to the government whence they came, at the expense of said government. A bill of this sort was introduced in February, 1867, by the late H. J. Raymond, then one of our New York representatives, induced to do so by Mr. Frederic Kapp, a foreign-born citizen himself, and one of the most active New York Commissioners of Emigration. The bill, however, was brought in too late, and only passed the House of Representatives."

Thirdly, it will be advisable that such a law once having been passed, but the treaties which have been spoken of not yet having been concluded, the United States proclaim openly and declare to every government in amity with the United States, that henceforth our government shall consider the attempted obtrusion of convicts a highly penal act, and if governments have anything to do with it, an unfriendly act in the sense of the law of nations which requires satisfaction."

SECTION I.

EXTRADITION OF CRIMINALS.

The practice of extradition rests upon the principle, that the common interests of all nations require the punishment of great criminals, and demand for that purpose an exception to the general rule that the penal laws of a State are local, and can have no aid from foreign powers.

This Section proposes to combine the penal systems of independent nations sufficiently for common protection against the ubiquity of crime. See Bluntschli, Droit International Codifié, § 395, and note.

There is, as has been already observed, a difference of opinion among jurists whether extradition, independent of treaty, is a matter of duty or discretion. If it be simply a matter of discretion, then the refusal to surrender fugitive criminals is no ground of offense to the State demanding it.

The leading authorities are thus epitomized by Forsyth, in Cases and Opinions in Constitutional Law, p. 369, note:

The former opinion is maintained by Grotius, Herneccius, Burlamqui, Vattel, Rutherforth, Schmelzing and Kent; the latter, by Puffendorf, Voet, Martens, Klüber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeier and Heffter. See Dana's Wheaton, § 115, and note 73.

Woolsey, (International Law, § 79.) says: "We conclude that there is a limited obligation of nations to assist each other's criminal justice, which only treaties expressing the views of the parties at the time, can define."

Heffter, (Droit International, § 63,) says: "Early writers, such as Grotius and Vattel, declared extradition obligatory; but the negative is held by modern writers, and has prevailed in practice."

Phillimore, (International Law, vol. I., 413,) says "The result of the whole consideration of this subject is that the extradition of criminals is a matter of comity, not of right, except in the cases of special convention."

Clarke, in his treatise upon the Law of Extradition, (ch. 1,) from a review of the opinions of jurists, draws the following conclusions:

“The surrender of fugitive criminals is an international duty. It may not be so plainly a matter of right, that the refusal to grant it should subject a nation to the penalty of war; but such a refusal is so clearly injurious to the country which refuses, and to the whole world, that it is a serious violation of the moral obligations which exist between civilized communities."

"In former times, the surrender was granted by a sovereign, in virtue of his own prerogative; but the recent course of European legislation has been to restrain this prerogative, and to cast upon the legislature of a country the task of providing for the performance of this duty."

"This provision should be guarded by the exclusion of political offenders, and requirement of some evidence of guilt before the accused person is delivered up. It would be wise also to restrict the offenses for which surrender should be granted, according to the facility with which criminals could escape from one country to another; but to refuse to make provision at all, would be to inflict an injury upon the whole world, and especially upon the country so refusing." See also, 2 Ward's Law of Nations, 319.

The provisions of this Section are based chiefly upon those of existing treaties, particularly the numerous American treaties, and the most recent French treaties; with such modifications as the nature of a general rule requires, and such as are suggested by the recent opinions of jurists and judicial decisions.*

In addition to the French treaties cited under the articles of this Section, the following, chiefly of an earlier date, may be referred to: De Clercq, vol. 5, p. 599; vol. 6, pp. 2, 19, 25, 114, 232, 277, 279, 324, 345, 347, 372, 431, 443. 449, 452, 455, 472, 499, 579, 601; vol. 7, pp. 186, 444, 618; vol. 8, pp. 42, 76; vol. 9, p. 407.

For an instructive history of the American doctrine of extradition, see the Letter of Mr. Lawrence, in the Transactions of the National Associa tion for the Promotion of Social Science, 1866, p. 151.

ARTICLE 210. Duty of extradition.

211. The requisition.

212. Requisition in case of offense committed

on the frontier.

213. Requisition in case of offense within a

colony.

214. What criminals are subject to extradition.

215. Exception of certain offenses.

216. Order of arrest.

217. Arrest in anticipation of requisition.

218. Preliminary investigation.

219. Rules for conducting investigation.

220. Documentary evidence.

221. Necessary proof of guilt.

222. Evidence in case of convicted criminals.

223. Inquiry as to real motive of demand.

* As the British government have entered into so few treaties of extradition, it is noticeable that Clarke, in his Treatise on Extradition, gives to the American laws the first place in the history of the Modern Law and Practice of Extradition. He says: "In the matter of extradition, the American law is better than that of any country in the world; and the decisions of the American judges are the best existing expositions of the duty of extradition, in its relations at once to the judicial rights of nations, and the general interests of the civilization of the world."

Several opinions of the United States Attorneys-General, here referred to, will also be found in Cases and Opinions in Constitutional Law, by Forsyth, pp. 244-366.

ARTICLE 224. Conflicting claims.

225. Surrender of those under arrest for local
offenses may be deferred.

226. Surrender, notwithstanding civil arrest.
227. Conditional extradition.

228. Member of a third nation.

229. Surrender, by whom made.

230. Surrender in case of offenses committed

on the frontier.

231. Surrender by colonial government.

232. Things in prisoner's possession,

233. Second arrest.

234. Custody of the prisoner.

235. Discharge in case of delay of extradition.

236. Limitations of time extended in certain

cases.

237. Restrictions as to punishment.

238. Necessary legislation to be provided.

Duty of extradition.

210. Each nation, on demand made by another nation, through its supreme executive authority,' in the manner provided in this Section, and at the expense of the demanding nation,' must deliver up to justice persons who, being accused of crimes enumerated in article 214, within the jurisdiction' of the latter, are found within the jurisdiction of the former.

This article and the next are founded on Article I. of the convention of November 9, 1843, between the United States and France. 8 U. S. Statutes at Large, 580; and other treaties.

All demands for international extradition must proceed from the supreme political authority of the demanding State. 7 Opinions of U. S. Attorneys-General, p. 6.

There can be no actual extradition until a proper requisition to that effect has been made by the foreign government to the Secretary of State. Extradition cannot be made upon mere judicial documents, for they are not requisitions, but only proof upon which the Secretary of State is to act when due requisition shall have been made. 8 Opinions of U. S. Attorneys General, p. 240.

2 A provision that the expenses of any detention and delivery, effected in virtue of the preceding provisions, shall be borne by the government in whose name the requisition is made, is usual in the treaties. The same rule is stated by Bluntschli, Droit Intern. Codifié, § 400.

But where, in consequence of conflict between the judicial authorities of the United States and those of a State, the latter aiming to prevent the