notes some of the leading decisions on the right of the United States to extradite fugitives from justice are cited.

§ 433. Power of Executive to extradite without treaty. -The only instance in which the Executive has undertaken to extradite any person from this country, except in pursuance of treaty stipulations, was in 1864, when Secretary Seward, with the approbation of President Lincoln, surrendered to the Spanish authorities one Arguelles, a Cuban officer who was guilty of selling a number of people into slavery and appropriating the proceeds of sale to his own use.

The surrender was accomplished so expeditiously that the extradition could not be prevented by judicial proceedings; Congress, however, took notice of the matter; a resolution was introduced in the House of Representatives condemning the proceeding; Mr. Seward defended his course in a communication addressed to the Chairman of the Commit. tee on the Judiciary; the resolution of censure was defeated. The House was politically in sympathy with the administration, however, and naturally desired to sustain it.

The general concensus of opinion as expressed by Professor Moore in his treatise on extradition is that, in the absence of treaty stipulations or act of Congress, there is no power in the Executive to extradite a person from this country to any other foreign country.1

flying to or from this country, including the Extradition Acts and Treaties. By F. J. Kirchner, London, 1882.

Volume I, of Moore's Extradition, referred to in the foregoing note, contains all of the important American and English cases, both legal and diplomatic, and also the statutes, up to 1888 are properly classified and annotated. The current digests should be consulted for subsequent cases. See U. S. Rev. Statutes § 5270, et seq., for statutory provisions in regard to extradition; consult marginal notes for prior statutes. § 433.

1" Sec. 15. Domestic Authority. It is laid down by Foelix, that 'according to national usage, extraditions are generally granted, even without treaty.' This statement assumes that authority exists in the government, in the absence of a treaty, to make the surrender. As we shall see further on, it is more than doubtful whether such authority is vested in any branch of the government either in the United States or in Great Britian. In France and in other countries in which extradition is entirely within the control of the executive, fugitives may be surrendered in the absence of a treaty, or, in case a treaty exists, for

The account of the Arguelles case, as it has been reported in Works on international law,2 and, as quoted in Mr. Beck's

offences not included in it. But, as a rule, reciprocity, is strictly required." Moore on Extradition, p. 20, vol. 1.

"In considering the surrender of fugitives from justice, in the absence of a treaty, the question arises whether the government upon which a demand for extradition is made possesses the legal authority to grant it. This is a question of constitutional law, and in the United States the general opinion has been, and practice has been in accordance with it, that in the absence of a conventional or a legislative provision, there is no authority vested in any department of the government to seize a fugitive criminal and surrender him to a foreign power." Moore on Extradition, vol. 1, p. 21. See also the numerous references to diplomatic correspondence in the foot note.

The opinion of Mr. Jefferson on this subject is that the fugitive could not be surrendered. As Secretary of State in a letter to the President, dated November 17, 1791, he expressed his opinion that it should not be done in the absence of a convention.

The letter, or rather the report, is found on page 22, vol. 1, of Moore's Extradition.

2 SPEAR ON THE ARGUELLES CASE.

"The question of international extradition has frequently come before the courts of this country; and, with a single exception, the opinions expressed are unanimous to the effect that there is no obligation to surrender fugitive criminals, except as provided for by treaty stipulations. . . . The preponderance of authority derived from practice, the legislation of Congress, the opinions of the Attorney Generals of the United States, and the deliverances of the judiciary, both State and Federal, clearly shows that no department of the general government is either bound or authorized to deliver up fugitive criminals from other countries, except in those cases for which provision is made by treaty. The powers of the government are bestowed by the Constitution; and, except as it may be clothed with the extradition power through treaties, no such power is found among the express or implied grants to Congress, or among those to the executive department, or among the powers given to the Federal judiciary. There can be no discretion in the exercise of the power, since it does not exist at all.

"The delivery of Arguelles, being wholly without any legal authority, was not at all excusable by the fact that the alleged fugitive was supposed to be guilty of a heinous offense. This supposition, if true, does not change the principle or the nature of the act. Rules of law do not vary with the merits or demerits of the particular case to which they are applied. Lynching men for murder, not being the method prescribed by law for killing murderers, is itself an act of murder.

"So the forcible seizure of a person and the delivery of him to the agent or agents of another government, to be removed from the jurisdiction and protection of the laws of this country, and to be tried for a

brief in the Neely Case, will be found in the note appended to this section, as well as some decisions bearing on the gen

crime or crimes committed elsewhere, unless authorized and provided for by a treaty, can have no other legal character than that of official kidnapping. The action of the executive branch of the government, in the case of Arguelles, was an enormous usurpation of power, and, as a precedent, is one of the very worst in our whole history. It ought to have called forth the most unqualified protest on the part of Congress. "The theory that any person, peacefully coming within the jurisdiction of our laws, and committing no offense against them, may, in the absence of any treaty or law of Congress authorizing his extradition on the charge of crime made by a foreign government, be denied the right of unmolested asylum at the discretion of the President of the United States, assigns to his office the prerogatives of an absolute despot. Such was the theory put in practice with reference to Arguelles.

"We have selected this case, not on account of the man himself, but on account of the principle involved in it, and especially for the purpose of considering the question whether the general government, independently of treaties, is clothed with the power of international extradition, and also whether such extradition on the simple basis of the law of nations has any legal standing among the American people. The preponderance of authority is overwhelmingly against the idea.

"Secretary Seward, in his answer to the resolution of the Senate, remarked that no nation is bound to furnish asylum to dangerous criminals who are offenders against the human race.' This is true, yet it has no relation to the question whether the arrest and delivery of Arguelles were legally justifiable. The President of the United States is not clothed with the total sovereignty of the United States, but is simply the executive authority thereof, and, as such, limited in his powers and duties by the Constitution and laws of the United States, and cannot lawfully exercise any power with which he is not thus invested. The policy of the United States as to the extradition of fugitive criminals is not to be settled by an executive act, without the warrant of a treaty, or any law of Congress authorizing the act." Spear's Law of Extradition, pp. 10, 13-14.

3 MR. BECK ON THE ARGUELLES CASE.

"The facts in this case were that on April 5, 1864, the minister of Spain addressed a note to the Secretary of State, informing him that one Jose Arguelles had escaped from the island of Cuba under the charge of having sold into slavery a large number of recaptured African slaves, and had taken refuge in New York. The minister therefore asked that Arguelles might be delivered up to the Government of Spain, 'not upon the ground of a right to demand it, but as an act of comity in the interest of justice and humanity.' (Letter of Secretary Seward to chairman of the Committee on the Judiciary, House of Representatives, Diplomatic Correspondence, 1864, part 4, p. 37.) By direction of the Presi

eral question of how far extradition is limited to the surrender of fugitives pursuant to treaty stipulations.*

dent, Arguelles was seized in New York and delivered to the Spanish authorities for trial in Habana. When this became known a resolution was introduced in the House of Representatives, condemning the action of the Executive. Mr. Seward defended his course in a lengthy and forcible communication addressed to the chairman of the Committee on the Judiciary, to which reference will presently be made. Once again the legislative branch of the Government affirmed the present contention of the Government, for as in the case of Robbins, when the House, by a large majority, accepted the view of Marshall as to President Adams's power, so in the Arguelles case the House accepted the contention of Secretary Seward and defeated the resolution of censure. In the Senate a resolution was adopted requesting information, and on June 1, 1864, President Lincoln transmitted to the Senate, Secretary Seward's report, which said:

"There being no treaty of extradition between the United States and Spain, nor any act of Congress directing how fugitives from justice in Spanish dominions shall be delivered up, the extradition in the case referred to in the resolution of the Senate is understood by this Department to have been made in virtue of the law of nations and the Constitution of the United States. Although there is a conflict of authorities concerning the expediency of exercising comity toward a foreign government by surrendering, at its request, one of its own subjects charged with the commission of crime within its territory, and although it may be conceded that there is no national obligation to make such a surrender on a demand therefor, unless it is acknowledged by treaty or by statute law, yet a nation is never bound to furnish asylum to dangerous criminals who are offenders against the human race; and it is believed that if, in any case, the comity could with propriety be practiced, the one which is understood to have called forth the resolution furnished a just occasion for its exercise.'

"Secretary Seward's communication to the House of Representatives constitutes a powerful argument for the power of the Executive to extradite in the absence of either treaty or Congressional enactment. It is as strong in reason as it is eloquent in diction. It bears with striking force upon the present contention, for, if the executive department of the Government may extradite as an act of sovereign power, independent of treaty or statutory enactment, a fortiori it can extradite when authorized, empowered, and directed by Congress so to do.

"Mr. Seward reviews the opinions of learned writers on international law and the decisions of the courts, to which reference has already been made in this brief. He concludes that 'upon the plainest reason and a uniform concurrence of authority, that the United States, in its relations to foreign nations, certainly possesses the authority to surrender to the pursuing justice of a foreign state a fugitive criminal found within our territory.'

4 For note 4 see p. 254.

How far the Executive has a right to surrender a deserter to a foreign government under the general rules of comity

"As to the alleged right of asylum in this country in the absence of treaty regulations for extradition, Mr. Seward's reasoning is especially forcible. He says:

"That the practice of civilized nations, and especially of this country, has maintained this privilege of asylum, and that this nation at least would consider its honor engaged to vindicate it, no one will be disposed to deny. This privilege is understood to embrace refugees from personal oppression and from the consequences of political offenses. But no civilized nation, and our own as little as any, has included within this privilege criminals guilty of crimes prescribed by nature and humanity. In these cases, to afford protection against pursuing justice is an offense against humanity and against our own society. Mr. Wirt, in a passage already quoted, draws the distinction with force and precision. In speaking of the case of the criminals before him, he says their surrender "would violate no claim which these fugitives have on us. Humanity requires us to afford an asylum to the unfortunate, but not to furnish a place of refuge to the guilty. On the other hand, respect for ourselves and a prudent regard for the purity of our society admonish us to repel rather than invite the admixture of foreign turpitude and contamination.'

"Mr. Seward concludes his forcible vindication of his position by saying: "Upon these considerations, then, it would seem that the action of the President of the United States, in directing the extradition of Arguelles upon the application of the Government of Spain, was in pursuance of a national authority, sanctioned by the law of nations; was in exercise of an executive function belonging to his office under the Constitution; was not in derogation of any right of asylum; was a just recognition of our relations with a friendly power; was conformed to the cherished policy of this country for the extinction of the traffic in slaves, and was an obligation to justice and humanity which could not have been withheld.'

"All of which might with almost equal propriety be applied to the case at bar." Extracts from brief James M. Beck, Ass't Atty. Gen'l of United States in Neely vs. Henkel.

4 United States vs. Davis, U. S. C. C. Mass. 1837, 2 Sumner, 482, STORY, J. The master of an American whaling ship while lying in the harbor of one of the Sandwich Islands shot and killed a man on the schooner attached to the whaling vessel, but which belonged to residents of the island. On trial in the United States court it was held that the crimes act of 1790 only gave jurisdiction when the crime was committed on the high seas, and that the offence was committed not on the whaling ship, but on the schooner, and therefore was within the scope of the local authorities. The suggestion being made that the prisoner should be remanded to the Governor of the Sandwich Islands for trial, Mr. Justice Story said that he had never known of any such authority exercised by our courts.