taken under a very limited form of procedure, and a moment after he is found in the possession of another sovereignty by virtue of that proceeding, but divested of all the rights which he had the moment before, and of all the rights which the law governing that proceeding was intended to secure.

"If upon the face of this treaty it could be seen that its sole object was to secure the transfer of an individual from the jurisdiction of one sovereignty to that of another, the argument might be sound; but as this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extradited, and of bad faith to the country which permitted his extradition. No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them.

"The opposite view has been attempted to be maintained in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the offense was committed to try the person for the crime alone for which he was extradited, and that once being within the jurisdiction of that country, no matter by what contrivance or fraud or by what pretense of establishing a charge provided for by the extradition treaty he may have been brought within the jurisdiction, he is, when here, liable to be tried for any offense against the laws as though arrested here originally. This proposition of the absence of express restriction in the treaty of the right to try him for other offenses than that for which he was extradited, is met by the manifest scope and object of the treaty itself. The caption of the treaty, already quoted, declaring that its purpose is to settle the boundary line between the two governments; to provide for the final suppression of the African slave trade; adds, and for the giving up of criminals, fugitive from justice, in certain cases.' The treaty, then, requires, as we have already said, that there shall be given up, upon requisitions respectively made by the two governments, all persons charged with any of the seven crimes enumerated, and the provisions giving a party an examination before a proper tribunal, in which, before he shall be delivered up on this demand, it must be shown that the offense for which he is demanded is one of those enumerated, and that the proof is sufficient to satisfy the court or magistrate before whom

this examination takes place that he is guilty and such as the law of State of the asylum requires to establish such guilt, leave no reason to doubt that the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offense and for no other.

"If there should remain any doubt upon this construction of the treaty itself, the language of two acts of Congress, heretofore cited, incorporated in the Revised Statutes, must set this question at rest. Rev. Stat. §§ 3272, 3275. ***

"The obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United States, is that the party shall not be delivered up by this government to be tried for any other offense than that charged in the extradition proceedings; and that, when brought into this country upon similar proceedings, he shall not be arrested or tried for any other offense than that with which he was charged in those proceedings, until he shall have had a reasonable time to return unmolested to the country from which he was brought. This is undoubtedly a congressional construction of the purpose and meaning of extradition treaties such as the one we have under consideration, and whether it is or not, it is conclusive upon the judiciary of the right conferred upon persons bought from a foreign country into this under such proceedings.

“That right, as we understand it, is that he shall be tried only for the offense with which he is charged in the extradition proceedings, and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime. committed previous to his extradition. * * *

"Upon a review of these decisions of the Federal and State courts, to which may be added the opinions of the distinguished writers which we have cited in the earlier part of this opinion, we feel authorized to state that the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses described in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."

WAIT, C. J., dissented from the opinion of the court.1

1 The decision in Rauscher's case put an end to a controversy between the United States and England, of some years' standing, as to the interpretation of the extradition clause of the treaty of 1842. England had contended that a person surrendered

TRIMBLE'S CASE, 1884.

(Moore on Extradition, I., 166.)

The question as regards the power and duty of a State to surrender its own citizens under treaties of extradition.

The question of the power of the government of the United States to surrender its citizens under the treaty with Mexico of 1861, was discussed in 1884, in the case. of Alexander Trimble, an American citizen, whose extradition was demanded on charges of robbery and murder.

The first article of the treaty stipulates that the contracting parties shall, on requisition "deliver up to justice persons, who, etc." But in the sixth article, it is further declared that "neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this treaty."

The government of the United States declined to order the surrender of the prisoner, on the ground that, as the treaty negatived any obligation to do so, the President was not invested with legal authority to act.

Mr. Frelinghuysen said, "It appears that, by the opinions of several Attorneys-General, by the decisions of our courts, and by the rulings of the Department of State, the President has not, independent of

under the treaty, could be tried for no offense except the specific one for which extradition was accorded. The government of the United States had insisted, on the other hand, that a person once extradited could be indicted and tried for offenses other than that charged in the demand for extradition. (See the cases of Lawrence and Winslow, Moore's Extradition, I., 196-219; Wharton's Digest, II., § 270; U. S. Foreign Relations, 1876.)

The Supreme Court, in Rauscher's case, upholds the English view of the question. Previous to this authoritative decision, judicial opinion had been divided. In accord with this decision: Com. v. Hawes, 1877, 13 Bush., 697; Blanford v. The State, 1881, 10 Texas App., 627; Watt's Case, 1882, 14 Fed. Rep., 139; State v. Vanderpool, 1881, 39 Ohio State, 237. Contra Caldwell's Case, 1871, 8 Blatch, 131; Lagarve's Case, 1873, 14 Abb. Pr. (N. S.), 333; In re Miller, 1885, 23 Fed. Rep., 32; Ex parte Hibbs, 1886, 26 Fed. Rep., 422.

The decisions of the French court of Cassation are in accord with that of the United States Supreme Court: Dalloz, 1867, p. 281, No. 6, and Ib., 1874, p. 502 and notes.

In Rauscher's case, the Supreme Court expressed the opinion that, in the absence of treaty, there was under international law no right of extradition.

And further that, in the United States, extradition is a matter exclusively in the control of the Federal government. (See Ex parte Holmes, 1840, 12 Vt., 631; Holmes v. Jennison, 14 Peters, 540; People v. Curtis, 50 N. Y., 321.)

treaty provision, the power of extraditing an American citizen; and the only question to be considered is whether the treaty with Mexico confers that power.

"By the treaty with Mexico proclaimed June 20, 1862, this country places itself under obligations to Mexico to surrender to justice persons accused of enumerated crimes committed within the jurisdiction of Mexico who shall be found within the territory of the United States; and further provides that that obligation shall not extend to the surrender of American citizens. The treaty confers upon the President no affirmative power to surrender an American citizen. The treaty between the United States and Mexico creates an obligation on the part of the respective governments, and does no more, and where the obligation ceases the power falls. It is true that treaties are the laws of the land, but a statute and a treaty are subject to different modes of construction. If a statute by the first section should say, The President of the United States shall surrender to any friendly power any person who has committed a crime against the laws of that power, but shall not be bound so to surrender American citizens, it might be argued, perhaps correctly, that the President had a discretion whether he would or would not surrender an American citizen. But a treaty is a contract, and must be so construed. It confers upon the President only the power to perform that contract. I understand the treaty with Mexico as reading thus: The President shall be bound to surrender any person guilty of crime, unless such person is a citizen of the United States.

"Such being the construction of the treaty, and believing that the time to prevent a violation of the law of extradition was before the citizens left the jurisdiction of the United States, I telegraphed the Governor of Texas that an American citizen could not legally be held under the treaty for extradition.

"It would be a great evil that those guilty of high crime, whether American citizens or not, should go unpunished; but even that result could not justify an usurpation of power.

"On further reflection, in view of the fact that fourteen of our treaties with other nations contain provisions identical with that contained in our treaty with Mexico, and impressed also with the fact that the safety and peace of society on the frontier would be greatly injured if criminals, because citizens of this country, could here find an asylum and go unpunished, I concluded that the question was one of too much importance to be settled by the dictum of any individual, but should receive judicial determination, and to this end I telegraphed the officers to hold the accused until they received other direction. The accused had, however, after my first telegram, been discharged

"I now propose to inform the officers in Texas, who, subject to the supervision of the President, are authorized to determine whether a surrender of the accused should be made, that if another arrest is made and a case of guilt is made out, the President will not, on the ground of citizenship, interfere with an order of surrender if such be made, but requires that the accused be informed that if he or they wish a hearing before the Supreme Court of the United States on habeas corpus as to the power of the President in the matter of extradition, or as to the true construction of the treaty before the surrender be actually made, every facility for such hearing will be afforded. Should the court hold that the President has a discretionary power of extraditing citizens proven guilty of crime, the evil apprehended will not be realized; and should the court hold that the President has the power to extradite only when bound by treaty to do so, Congress can then, if it should be its pleasure, by statute confer the discretionary power." 1

1 In a similar case, in 1893, not yet reported, it is understood that the Federal District Court of Texas discharged the prisoner, on the grounds stated by Mr. Frelinghuysen, thus preventing a review of the question by the Supreme Court.

"The exemption of citizens from extradition has been maintained on various grounds. The only one which need seriously be noticed is that by the laws of most countries provision is ma le for the trial an 1 punishment of their citizens for offenses committed abroad, and that a State should not deliver up one of its citizens to be tried before a foreign tribunal when he can be punished at home under its own laws. By England and the United States alone are offenses, even when committed by their citizens or subjects, treated as entirely local." (Moore's Extradition, I., 153.)

In negotiating extradition treaties these two states have therefore been willing to stipulate for the rendition of their own subjects or citizens. Indeed, the United States for a time refused to enter into extradition treaties on any other basis; but since 1852 this objection appears to have been waived, and a large number of our treaties of extradition, as that with Mexico, exempts each party from the obligation to surrender its own citizens.

But as this exemption from the obligation to surrender citizens was doubtless inserted in these treaties in deference to the opinion of other states, it is not probable that it was intended as an absolute prohibition upon the President of the United States; indeed, the worling of the clause would seem to imply a discretion on the part of the contracting parties.

In 1889, the Institute of International Law, after an exhaustive discussion of the subject of extradition, adopted a series of resolutions, the sixth of which was as follows:

"Between countries whose criminal legislation rests on similar foundations, and which have confidence in each other's ju licial institutions, the extradition of their own citizens would be a means of securing the good administration of criminal justice, because it ought to be desirable that the authorities of the forum delicti commissi should, if possible, be called upon to try the case."

See on this subject: Moore's Extradition, I., 152; Dana's Wheaton, pp. 189-191,

notes.